COMMENTS ON
EPA'S PROPOSED §316(a)
REGULATIONS AND DRAFT GUIDANCE MANUAL
Submitted To
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
By
The Edison Electric Institute
The American Public Power Association
National Rural Electric Cooperative Association
with the following utility systems constituting
The Utility Water Act Group:
Allegheny Power System, Inc.
Monongahela Power Company
The Potomac Edison Company
West Penn Power Company
American Electric Power Company, Inc.
Baltimore Gas and Electric Company
Boston Edison Company
Carolina Power & Light Company
Commonwealth Edison Company
Consolidated Edison Co. of New York, Inc.
Jonsumers Power Company
Duke Power Company
Florida Power & Light Company
General Public Utilities Corporation
Hartford Electric Light Company, Holyoke Water
Power Company, The Connecticut Light and
Power Company, Western Massachusetts Electric
Company
Illinois Power Company
Long Island Lighting Company
Middle South Utilities, Inc.
Montaup Electric Company
National Rural Electric Cooperative Association
New England Power Company
Pacific Gas and Electric Company
Pennsylvania Power & Light Company
Philadelphia Electric Company
Potomac Electric Power Company
Public Service Company of New Hampshire
Public Service Electric & Gas Company
San Diego Gas & Electric Company
South Carolina Electric & Gas Company
Southern California Edison Company
Southern Services, Inc.
Tampa Electric Company
Tennessee Valley Authority
Union Electric Company
Virginia Electric and Power Company
Wisconsin Electric Power Company
And the following additional utility systems endorsing such comments:
New York Power Pool
Alaska Electric Light and Power Company
Alaska Power and Telephone Company, Inc.
Arizona Public Service Company
Atlantic City Electric Company
Bangor Hydro-Electric Company
Black Hills Power and Light Company
Bozrah Light and Power Company
California-Pacific Utilities Company
Central Hudson Gas & Electric Corporation
Central Illinois Light Company
Central Illinois Public Service Company
Central Kansas Power Company, Inc.
Central Louisiana Electric Company, Inc.
Central Maine Power Company
Central and South West Corporation
Central Power and Light Company
Public Service Company of Oklahoma
Southwestern Electric Power Company
West Texas Utilities Company
Central Telephone & Utilities Corporation
Central Vermont Public Service Corporation
Connecticut Valley Electric Company, Inc.
Cincinnati Gas & Electric Company, The
Union Light, Heat & Power Company
West Harrison Gas & Electric Company
Cleveland Electric Illuminating Company, The
Columbus and Southern Ohio Electric Company
Community Public Service Company
Concord Electric Company
(over)
June 26, 1974
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Continued — The following additional utility systems endorsing such comments:
Dayton Power and Light Company, The
Delmarva Power & Light Company
Delmarva Power & Light Company of Maryland
Delmarva Power & Light Company of Virginia
Detroit Edison Company, The
Duquesne Light Company
Eastern Utilities Associates
Blackstone Valley Electric Company
Brockton Edison Company
Fall River Electric Light Company
Electric Energy, Inc.
El Paso Electric Company
Empire District Electric Company, The
Exeter & Hampton Electric Company
Fitchburg Gas and Electric Light Company
Florida Power Corporation
Green Mountain Power Corporation
Gulf States Utilities Company
Hawaiian Electric Company, Inc.
Hilo Electric Light Co. Ltd.
Maui Electric Company Ltd.
Hershey Electric Company
Home Light and Power Company
Houston Lighting & Power Company
Idaho Power Company
Indianapolis Power & Light Company
Interstate Power Company
Iowa Electric Light and Power Company
Iowa-Illinois Gas and Electric Company
Iowa Power and Light Company
Iowa Public Service Company
Iowa Southern Utilities Company
Kansas City Power & Light Company
Kansas Gas and Electric Company
Kansas Power and Light Company, The
Kentucky Utilities Company
Old Dominion Power Company
Lake Superior District Power Company
Madison Gas and Electric Company
Maine Public Service Company
Minnesota Power & Light Company
Superior Water, Light and Power Company
Missouri Public Service Company
Missouri Utilities Company
Montana-Dakota Utilities Company
Montana Power Company, The
Mt. Carmel Public Utility Company
Nevada Power Company
New England Gas and Electric Association
Cambridge Electric Light Company
New Bedford Gas and Edison Light Company
New Mexico Electric Service Company
New York State Electric & Gas Corporation
Newport Electric Corporation
Niagara Mohawk Power Corporation
Northern Indiana Public Service Company
Northern States Power Company
Northern States Power Company (Wisconsin)
Northwestern Public Service Company
Ohio Edison Company
Pennsylvania Power Company
Ohio Valley Electric Corporation
Oklahoma Gas and Electric Company
Orange and Rockland Utilities, Inc.
Pike County Light & P"ower Company
Rockland Electric Company
Otter Tail Power Company
Pacific Power & Light Company
Portland General Electric Company
Public Service Company of Colorado
Cheyenne Light, Fuel & Power Company
Public Service Company of Indiana, Inc.
(Public Service Indiana)
Public Service Company of New Mexico
Puget Sound Power & Light Company
Rangeley Power Company
Rochester Gas and Electric Corporation
St. Joseph Light & Power Company
Savannah Electric & Power Company
Sherrill-Kenwood Power and Light Co., Inc.
Sierra Pacific Power Company
Southern Indiana Gas and Electric Company
Southwestern Electric Service Company
Southwestern Public Service Company
Texas Utilities Company
Dallas Power & Light Company
Texas Electric Service Company
Texas Power & Light Company
Toledo Edison Company, The
Tucson Gas & Electric Company
UGI Corporation
United Illuminating Company, The
Upper Peninsula Power Company
Utah Power & Light Company
Western Colorado Power Company, The
Washington Water Power Company, The
Wellsboro Electric Company
Windber Electric Corporation
Wisconsin Power and Light Company
Wisconsin Public Service Corporation
Other electric systems are expected to give endorsement by separate letter.
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EDISON ELECTRIC INSTITUTE - UTILITY WATER ACT GROUP
COMMENTS ON EPA'S PROPOSED § 316(a) REGULATIONS
AND DRAFT GUIDANCE MANUAL
TABLE OF CONTENTS
Comments on Proposed Section 316(a) Regulations and Draft
Guidance Manual
Attachments
A. Annotated Mark-Up of Proposed Section 316(a) Regulations
B. Technical Critique of § 316(a) Guidance Manual (EEI
Environment & Energy Committee, Water Quality Subcom-
mittee, EEI Ad Hoc Water Quality Group and UWAG Per-
sonnel)
C. Results of Industry Questionnaire
Note: Because of the interrelationship of §§ 304, 306 and 316(a)
with regard to effluent limitations on discharges from steam elec-
tric powerplants, our comments on EPA's proposed regulations under
§§ 304 and 306 are incorporated by reference in our submission in
this rulemaking. The Table of Contents to those comments follows.
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EDISON ELECTRIC INSTITUTE - UTILITY WATER ACT GROUP
COMMENTS ON EPA's PROPOSED § 304 GUIDELINES AND
§ 306 STANDARDS OF PERFORMANCE FOR STEAM ELECTRIC
POWERPLANTS
TABLE OF CONTENTS
EPA's Proposed §§ 304 Guidelines and 306 Standards of Performance
for Steam Electric Power Generating Plants
Attachments
I. Legal Memoranda
A. The Federal Water Pollution Control Act Amendments
' of 1972: Setting and Implementing § 304(b) Guide-
lines, § 301(b) Effluent Limitations and § 306
Standards of Performance (Hunton, Williams)
B. EPA Must Comply With the Decision-Making Require-
ments of NEPA in Performing Its Duties Under the
FWPCA (Hunton, Williams)
II. Costs and Benefits of Thermal Effluent Reduction (NERA)
III. Study on the Cost of Backfitting from Open to Closed
Cycle Copling (Sargent & Lundy)
IV. A. Ecplogic Effects of Once-Through Cooling -- A
Modeling Study (WRE)
B. UWAG Biological Committee Letter on WRE Report
C. General Summary of Effects of Thermal Discharge
on Aquatic Life (Dr. Lauer)
D. Comment on WRE Report (Dr. Chen)
V. Estimates of the Value of Changes in Aquatic Life Re-
sulting From Reductions in Thermal Effluent (NERA)
VI. Comments on the Economic Impact of the Environmental
' PrQtjection Agency's Proposed Effluent Guidelines (NERA)
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VII. A Critique of the Burns and Roe Report and Development
Document for Proposed Effluent Limitations Guidelines .
(UWAG Thermal Engineering Committee)
VIII. Impact on Reliability of Utility Systems from Implementa-
tion of Proposed Federal EPA Effluent Limitations (UWAG
Reliability Subcommittee)
IX. Consumptive Water Use Implications of the Proposed EPA
Effluent Guidelines for Steam-Electric Power Generation
(Espey, Huston)
X. Results of Industry Questionnaire
XI. Suggested Revisions to Non-Thermal Effluent Guidelines
Portions (Chemical) of EPA1s Proposed Effluent Limitations'
Guidelines for Existing Sources and Standards of Perfor-
mance and Pretreatment Standards for New Sources for the
Steam Electric Power Generating Category (EEI Ad Hoc Water
Quality Group, Chemical Subcommittee)
XII. Report on Proposed Chemical Effluent Limitations Guidelines
and Standards for the Steam Electric Power Generating Point
Source Categories (NUS)
XIII. Suggested Revisions to Review of Non-Thermal Effluent Guide-
lines Portions (Chemical) of EPA's Proposed Regulations,
§§ 304 and 306 (EEI Ad Hoc Water Quality Group, Chemical
Committee)
XIV. Review of Development Documents Regarding Treatment of Burns
and Roe Report and EEI Comments on Chemical and Non-Thermal
Discharges (EEI Ad Hoc Water Quality Group, Chemical Sub-
committee)
XV. Exchange of Correspondence with EPA
XVI. Summary of Tennessee Valley Authority's Preliminary Analysis
of Modifications Required To Meet FWPCA Nonthermal Effluent
Limitations at 12 Existing Coal Fired Plants
XVII. List of Documents Being Placed in the Record
XVIII. Roster of UWAG and EEI Committees,Involved in Joint Effort
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COMMENTS ON PROPOSED SECTION 316(a) REGULATIONS AND DRAFT
GUIDANCE MANUAL
-------
COMMENTS ON PROPOSED
SECTION 316(a) REGULATIONS
AND
DRAFT GUIDANCE MANUAL
SUBMITTED TO
UNITEP STATES ENVIRONMENTAL PROTECTION AGENCY
June 26, 1974
UTILITY WATER ACT GROUP
EEI AD HOC WATER QUALITY GROUP
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TABLE OF CONTENTS
SUMMARY 1
I. INTRODUCTION ... ..... 7
II. SEVERE TIME CONSTRAINTS 12
A. Excessive Information Requirements .... 14
B. Unnecessarily Restricted Opportunity to
Collect Additional Data 19
C. Deadlines for Compliance with Non-Section
316(a) Effluent Limitations 22
D. Duplicative and Protracted Procedures . . 27
III. SUBSTANTIVE STANDARDS 32
A. Definition of the Population to be
Protected 32
1. The Proposed Regulations 32
2. The Legislative History 34
3. The Permit-Period Population Test . . 38
a. Non-thermal Water Quality
Criteria as a Determinant ... 39
b. Receiving Water Body Type
as a Determinant 41
B. Recognition of Compliance with Thermal
Water Quality Standards 43
IV. TIMING OF DETERMINATIONS FOR NEW SOURCES ... 51
APPENDIX A-l
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UTILITY WATER ACT GROUP
EEI AD HOC WATER QUALITY GROUP
Comments on Proposed Regulations and Draft
Guidance Manual for Administering Section 316(a)
of the Federal Water Pollution Control Act
SUMMARY
1 2
EPA's proposed regulations and draft Guidance Manual
3
for administration of § 316(a) would together foreclose,
in most cases, any practical opportunity to demonstrate the
appropriateness of § 316(a) thermal limitations. They would,
in short, make § 316(a) unavailable to most steam electric
powerplants in the country.
In its parallel rulemaking for steam electric powerplants
under §§ 304(b) and 306, EPA has assumed that the cost and
impact of proposed thermal effluent limitation guidelines and
standards of performance will be mitigated by § 316(a). By
the Agency's questionable estimate, 80% of pre-1973 powerplants
39 Fed. Reg. 11434 (1974). The proposed regulations are synopsized
in the appendix to this memorandum.
2
Environmental Protection Agency, Proposed Guidelines for
Administration of the § 316(a) Regulations (Draft April 18, 1974)
(hereinafter cited as the "Manual"); Notice of Availability 39 Fed.
Reg. 16921 (1974).
333 U.S.C. § 1326(a) (Supp. II, 1972).
439 Fed. Reg. 8294 (1974).
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and roughly 50% of post-1973 plants otherwise subject to
its technological standards will be granted relief under
§ 316(a). Without § 316(a), the Agency estimates that the
capital cost of the utility industry's meeting proposed technological
standards would be $39.5 billion by 1990;6 the resulting
nationwide loss in generating capacity by that date would
exceed the present capacity of the entire Tennessee Valley
Authority System. If those costs are to be avoided and
EPA's expectation realized, the proposed § 316(a) regulations
must be substantially revised before adoption, and the draft
Manual must be withdrawn.
There are three major reasons why the proposed regulations
and Manual would fatally undermine § 316(a). These are dis-
cussed below. •
First, the proposed regulations fail to reckon with the
severely limited time within which § 316(a) determinations must
be made for existing powerplants. Plants must have discharge
permits by December 31, 1974. Less obvious but more crucial,
the compliance dates of July 1, 1977, and July 1, 1978, for
EPA Office of Planning and Evaluation, Economic Analysis of Pro-
posed Effluent Guidelines — Steam Electric Powerplants, 1-3
(Sept. 1973).
6Id. at 11-58, 11-59, Tables 27 and 28.
Id. The total capacity loss figure of 25,100 MWe compares with
TVA's total installed capacity of 23,316 MWe. Tennessee Valley
Authority Annual Report, April, 1974.
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achieving water quality standards and "best available technology,"
respectively, are fatal to effective implementation of § 316(a)
through EPA's proposals. Unless § 316(a) limitations have been
established by December 31, 1974, costly design work must begin
on any cooling towers necessary to meet state thermal water
quality standards.
EPA has taken the position that § 316(a) limitations
supplant any more stringent thermal water quality standards.
We concur. But § 316(a) cannot be given that intended effect if
construction must commence before applicants have had an
opportunity to demonstrate the excessive stringency of water
quality standards.
The July 1, 1977 date for compliance with those standards
looms large for three-fourths of the capacity in the industry.
We believe it absurd to require construction of off-^stream
cooling facilities before the data required to show that they
are unnecessary can even have been collected. To avoid this
result, regulations implementing § 316(a) must be amended
to provide for quick initial demonstrations and decisions.
Appropriate data-gathering and monitoring conditions in any
original § 316(a)-based permit would afford information for
further determinations. In addition, information that will
become generally available through §§ 104(t) and 303(d) will
aid subsequent § 316(a) determinations.
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The second major reason why EPA's proposals will
fatally undermine § 316(a) is that the limited methods
prescribed for demonstrating compliance with § 316(a) are
simply infeasible. As elaborated by the Manual, one ("no
appreciable harm") is infeasible in the time remaining before
pliuts must have discharge permits (December 31, 1974), or
before construction must commence to meet non-§ 316(a)
limitations where § 316(a) has not been invoked. The others
are infeasible in almost any amount of time.
A full year's data is required for a "no appreciable
harm" demonstration. Design of a data-gathering program and
Q
analysis of samples may stretch that one year to two.
Even if it could be done before lead times and compliance
dates forced beginning construction, relatively few plants
are eligible for a "no appreciable harm" demonstration.
Only (a) existing plants with (b) several years operating
experience on (c) unpolluted water bodies are eligible for a
"no appreciable harm" demonstration. All other plants are
remitted to two other demonstrations for which the Manual
demands data unavailable to the scientific community. Both
involve completion of a Thermal Tolerance Matrix. Collection
o
Results of an Industry Questionnaire summarized in Attachment C
to these Comments indicate that the average time needed to prepare
for uncontested § 316(a) proceedings is estimated at 13.9 months.
For controlled proceedings, the average time needed is estimated
at 22.7 months.
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of the data necessary for this exercise would take years of
intensive laboratory and field investigation by dozens of
biologists at each plant site.
If § 316(a) is to have any effect, implementing regulations
must prescribe feasible methods for demonstrating compliance.
Valid, reliable methods have been overlooked in the proposed
regulations and Guidance Manual. We urge the Agency to adopt
(1) the water quality standards method of proof, (2) a low
potential impact method of proof, and (3) a predictive
techniques method of proof. Further, EPA's proposed
"representative, important species" demonstration should be
merged into all the others in order to permit focused study
and analysis.
The third major flaw in the Agency's proposed regulations
and Manual is their definition of the "balanced, indigenous
population" which is the object of protection under § 316(a).
It would require "protection" of aquatic populations which,
in some cases, could not possibly exist in the pertinent
water body during the term of a discharge permit, even if all
thermal loads were removed. In other cases they would exclude
from § 316(a) consideration existing thermal discharges into
man-made water bodies which support thriving, viable aquatic
populations of recreational significance.
We believe that the population whose protection should
be assured under § 316(a) should be determined, first, in
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reference to that which can reasonably be expected to exist
in the water body during the term of the permit. On man-made
water bodies developed for cooling purposes this determination
should be made taking the existing heat load as given. On
natural water bodies, the determination may be made assuming the
absence of artificial additions of heat. However, in the
latter case, a conclusion that the resident population without
thermal discharges would differ significantly from the present
population, simply because of the removal of heat, is an
insufficient basis for rejecting a § 316(a) request. If the
population existing with artificial additions of heat is
viable and has recreational or commercial value, then the
existing population is the one whose protection should be
assured.
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I.
INTRODUCTION
Section 316(a) is a unique provision of the Federal
Water Pollution Control Act. Limited in scope to thermal
discharges, it authorizes case-by-case easing of any generally
applicable effluent limitation which is more stringent than
necessary "to assure the protection and propagation of a
balanced, indigenous population of shellfish, fish and wild-
life" in the receiving water. We believe that thermal dis-
charges from many steam electric powerplants using once-through
cooling do in fact assure this protection and propagation.
However, § 316(a) is not self-implementing. EPA has the
initial responsibility to assure that it is effected so as
to achieve Congress1 purpose. To fulfill that responsibility,
the Agency must develop procedures to give applicants sufficient
opportunity to show the propriety of easing non-§ 316(a) thermal
limitations. It must also define substantive tests to aid
prompt and fair decisions consistent with the purpose of
§ 316(a).
We believe that the following measures are necessary to
give § 316(a) its intended effect:
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1. Information required to justify establishing
§ 316(a) thermal limitations should be related to (a)
data and information reasonably available at the time the
showing must be made, and (b) the effective period of the
permit imposing § 316(a) limitations. Initially, § 316(a)
limitations should be established upon a demonstration that
relevant physical parameters and available biological
information indicate that "protection and propagation" will
not be precluded for the time reasonably necessary to collect
sufficient data to confirm the initial determination.
2. Final § 316(a) regulations should recognize that
there are two dimensions to the Act's effluent limitations:
(a) the technological stringency of the controls required, and
(b) the time by which those controls must be achieved.
Section 316.(a) may be invoked to modify either dimension
which is more stringent than necessary. Thus, if achievement
of a given technological standard by a set date is unnecessarily
stringent to assure protection and propagation, EPA may
defer the date in individual cases by establishing schedules
of compliance in § 316(a) effluent limitations. We believe
that EPA has this authority explicitly under § 316(a) and
implicitly as part of its general authority to administer
the Act.
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3. The advanced compliance dates in proposed § 304(b)
guidelines for 1983's "best available technology" effluent
limitations should be set back to the statutory deadline,
or failing that, at least two years, in order to allow § 316(a)
to operate.
4. The acceptable methods for demonstrating compliance
with § 316(a) should be expanded and made sufficiently flexible
that they become feasible. Prescribed methods should provide a
realistic alternative in all cases in which § 316(a) limitations
may be appropriate. Specifically, we recommend the following
additional routes to demonstrate compliance with § 316(a):
a. Compliance with approved water quality standards
for fish and aquatic life uses should give rise to a
presumption that the requirements of § 316(a) are satisfied.
Such a demonstration should be included in the final regulations
as an alternative mode of proof comparable to the "no appreciable
harm" demonstration.
b. Applicants for new plants and relatively new
existing plants should be allowed to show compliance with
§ 316(a) through valid predictive techniques or through use
of data from analogous or comparable situations.
c. A "low potential impact" demonstration should
be available for all plants, whether existing or new. Such
a demonstration should be based on evidence that the relationship
between (1) the size and configuration of the thermal discharge
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and (2) the volume, flow, temperatures and general physical
conditions is such that there is or will be no appreciable
impact relative to the water body as a whole.
5. Finally, the proposed regulations should make clear
that § 316(a) requests may be denied only where continuation
of the thermal discharge during the term of the discharge permit
in question would preclude the existence or maintenance of -
a viable, beneficial aquatic community during that time.
This memorandum addresses major deficiencies of EPA's
proposed regulations and draft Manual and offers a more
detailed description of the recommended remedies. Part II
examines the severe time limits within which § 316(a) must be
effectuated. Part III takes issue with the proposed regulations'
construction of the substantive standard embodied in § 316(a)
and articulates a standard more consistent with achieving
the intent of that section in practical application. Part IV
deals with the problem of the timing of § 316(a) determinations
for new sources. Since this problem is related to the much
broader problem of the general regulation of new sources, the
solution may usefully be viewed against that broader context.
We have addressed the general problem and its solution in
Attachment I-A to the Utility Water Act Group Comments on
proposed regulations implementing §§ 304(b) and 306.
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Three attachments are included with these comments.
Attachment A is a mark-up of the proposed regulations indicating
the changes necessary to implement the recommendations contained
herein. The preface to the mark-up is an explanation,
analogous to a preamble to regulations, which describes how
we believe each of the six principal recommended demonstration
types should be administered. Less significant changes are
shown on the mark-up, and the rationale explained in accompanying
annotations. Attachment B is a two-part critique of the draft
Manual from biological and engineering viewpoints, respectively,
prepared under the auspices of the Edison Electric Institute
Environment and Energy Division's Subcommittee on Water Quality
in conjunction with the Ad Hoc Water Quality Group and the
Utility Water Act Group. A summary of the results of an
industry questionnaire on the availability of § 316(a) under
EPA's proposed regulations is included as Attachment C.
The proposed regulations include parallel and substantially
identical procedures for administration of § 316(a) by EPA
Regional Administrators (Subpart B) and by Directors of state
water quality agencies conducting approved permit programs
(Subpart C). Though these comments focus on the provisions
for EPA administration, they are for the most part applicable
as well to the parallel provisions in Subpart C. The exceptions
are comments on hearing procedures and state certification prerequi-
sites which are unique to EPA administration.
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II.
SEVERE TIME CONSTRAINTS
The proposed regulations fail to provide realistic
solutions to critical time constraints: (1) the need for
applicants to obtain discharge permits by the end of 1974,
and (2) the necessity to meet non-§ 316(a) limitations or
to obtain a § 316(a) exemption from them by fixed dates.
In the absence of § 316(a), plants must achieve effluent
limitations necessary to meet state water quality standards
by July 1, 1977.10
Q
Section 301 of the Act declares any discharge of pollutants into
the navigable waters to be unlawful, except as in compliance with
certain sections of the Act, including § 402. Violations expose
the discharger to enforcement actions under § 309 and citizen suits
under § 505. 33 U.S.C. §§ 1319, 1365 (Supp. II, 1972). Section
402(k) immunizes unpermitted dischargers from civil or criminal
liabilities until December 31, 1974, if a permit application is
pending for the discharge and the applicant has not failed to
provide needed information. Id. § 1342(k).
10§301(b)(l)(C), 33 U.S.C. § 1311(b)(l)(C) (Supp. II, 1972).
Exemptions may be obtained under § 316(a) from state effluent
limitations whenever they are set at levels more stringent than
necessary to assure the protection and propagation of a balanced,
indigenous population. The authority of States to set such limita-
tions pursuant to § 301(b))(l) (C) is granted by § 510 "[ejxcept as
expressly provided in this Act." Section 316(a) expressly authorizes
relaxation of "any effluent limitation proposed [under §§301 or 306]
for the control of the thermal component of any discharge" which is
more stringent than necessary to protect a balanced,indigenous
aquatic population. (emphasis added). Further, § 303(g) requires
that water quality standards relating to heat must be consistent
with § 316(a). Any such standards which would result in unnecessarily
stringent effluent limitations would be inconsistent with § 316(a).
Thus such state-imposed effluent limitations are subject to § 316(a)
by the express language of § 316(a) and § 303(g).
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Further, EPA's proposed § 304(b) effluent limitation guidelines,
which apply in the absence of § 316(a), entail acceleration
of § 301's July 1, 1983 date to July 1, 1978, for "best
available technology" limitations applicable to large base
load units, which constitute the backbone of the industry.
Four general recommendations are advanced here to
resolve the difficulties inherent in satisfying deadlines under
the statute while preserving the viability of § 316(a).
In brief, they are as follows:
(a) Reduce the information necessary to support
an initial § 316(a) demonstration. Information reasonably
available in the limited time should be sufficient to conclude
that open-cycle operation during conduct of additional studies
will not appreciably harm the balanced indigenous population.
The results of those studies will then provide the basis for
a longer term § 316(a)-based discharge permit.
(b) Establish, on a case-by-case basis pursuant to
§ 316(a), coordinated with data-gathering programs necessary
to make a sufficient showing. This can be done under § 316(a)
since "alternative effluent limitations" include, by definition,
alternative compliance schedules.
U39 Fed. Reg. 8294, 96 (1974).
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(c<) Relax proposed § 304(b) compliance deadlines for
base-Load plants by abiding by the statutory deadline of 1983
or, at least, by deferring them from the 1978-80 period to the
1980-82 period.
(d1) Provide for optional consolidation of the duplicative
non-adjudicatory and adjudicatory hearings presently available
in the administration of § 316(a), in order to eliminate
redundancy and reduce the overall length of the hearing process.
Recommendation (a) is directed primarily to the problems
of timely attainment of discharge permits by December 31, 1974,
and secondarily to those of compliance with water quality
standards in 1977 and effluent limitations beginning in 1978.
Recommendation (b) is intended to assist in implementing
recommendation (a) with regard to 1977 and 1978 deadlines.
Recommendation (c) is directed entirely to compliance with
§ 304(b) effluent limitations, whose present deadline
for large base-load plants is 1978. Recommendation (d) is
intended to ease somewhat the obstacles to obtaining discharge
permits by the end of 1974.
These recommendations, and the context of their appli-
cation, are discussed in more detail below.
A. Excessive Information Requirements
The "no appreciable harm" and "representative important
species" tests could aid in implementing § 316(a) within the
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tight time frame of the Act. But the Manual's requirement
for excessive and irrelevant information for any prescribed
types of § 316(a) demonstrations severely limits their utility
and availability. It makes establishment of § 316(a)
limitations by December 31, 1974, highly unlikely. And to the
extent required data is not availabe at the time backfitting
must commence to meet §§ 301 and 304 limitations otherwise
applicable, it would preclude § 316(a) relief.
Where data are not available in the detail specified by
the Manual, their collection would take at least a full
12
year in order to reflect all four seasonal conditions.
Under any test, the Manual calls for "[a] list, and an
indication of the abundance of pollution tolerant species and
threatened and endangered species, at any trophic level,
and of species of fish, shellfish, and wildlife" which exist
13
there without stress from point source discharges. Additional
field data are required for a "representative important
species" demonstration. The requirements associated with
12
In very few cases are such extensive and detailed data available.
See note 15 below and Attachment C. Few, if any, existing studies
nave examined all trophic levels.
13
Environmental Protection Agency, Proposed Guidelines for Admin-
stration of the 316(a) Regulations 18, 25-6 (Draft, April 18, 1974)
14Id. 24.
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the remaining alternative, submission of comprehensive
biological monitoring data, are even more burdensome. It
would be virtually impossible to amass the data required
by the Manual before the statutory deadline for permit
issuance, December 31, 1974. Accordingly, the Manual should
be completely withdrawn from use during the critical period
between now and the end of the year.
In place of the Manual, the regulations should provide
that the information required to establish § 316(a)
limitations in each case must be related to (i) data and
information reasonably available at the time the showing
must be made and (ii) the effective period of the permit.
We believe that it would be sound administrative policy,
well within the Agency's discretion, to require § 316(a)
applicants to provide increasingly extensive information for
subsequent determinations as more detailed and sophisticated
Returns from an Edison Electric Institute questionnaire indicate
that for the 59 respondents, the average time to prepare for
uncontested § 316(a) hearings will be 13.9 months. Estimates
ranged from 0 (in two cases) to 36 (seven cases) months for
plants representing 350,213 MWe of capacity. For those responding
companies able to predict the time needed to prepare for contested"^
hearings, estimates ranged from 0 to 60 months with an average
of 22.7 months.
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Jata become available. Under such an approach, the decision-
maker would be directed to accept a reasonable quantum of
evidence, considering the circumstances at the time the
r.howing must be made, that protection of a "balanced,
indigenous population" would be assured during continuation
of a thermal discharge under § 316(a) limitations. Reasonably,
the duration of a discharge permit containing § 316(a)
effluent limitations should reflect the extent of the data
provided.
Initially, § 316(a) effluent limitations should be
established upon a demonstration that relevant physical
parameters and available biological data indicate reasonable
assurance of "protection and propagation." Thus, for example,
data relative to normal water temperatures, flow rates,
seasonal variations in these physical parameters, sources of
heat input, and calculations of the total dissipative capacity
of the body of water in question may justify establishing
initial § 316(a) limitations. If the information were
sufficient to conclude that "protection and propagation" would
More sophisticated data should become generally available as a
result of (1) EPA's continuing comprehensive studies under § 104(t)
of the effects of thermal discharge, and (2) state thermal load
analyses under § 303(d). 33 U.S.C. §§ 1254(t), 1313(d) (Supp. II,
1972).
These factors are the ones to be used in estimating total maxi-
mum thermal loads "required to assure the protection and propaga-
tion of a balanced, indigenous population of shellfish, fish and
wildlife" pursuant to § 303(d)(1)(D). 33 U.S.C. § 1313(d)(1)(D)
(Supp. II 1972). Basing § 316(a) determinations on them is con-
sistent with expression of legislative intent in the House. 118
Cong. Rec. 9129 (daily ed. Oct. 4, 1972) (remarks of Rep. Clausen),
1 Legis. Hist. 263.
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be assured for a period of two years, for example, the
discharge permit would be for two years and would be conditioned
upon the permittee's conducting a survey or monitoring program
to justify the establishment of § 316(a) limitations for a
longer period. In addition, the term of the permit could be
limited to the time reasonably necessary tp collect data
needed for a more substantial, longer-term determination.
At the expiration of the permit when § 316(a) limitations
were reexamined, a more substantial demonstration, based
on additional data collected during the term of the initial
permit, would be expected. But during the term of the
initial permit, the original § 316(a) limitations and study
conditions would supplant any more stringent limitation,
thus avoiding costly construction of cooling facilities before
a more conclusive long-term decision can be made.
Such an approach is necessary if the intent of § 316(a)
is not to be frustrated by overly burdensome and unrealistic
information requirements for initial § 316(a) determinations.
The suggestions in the Manual for one year's data-gathering
preceding § 316(a) determinations overlook pressing time
constraints and fail to recognize an important temporal
aspect of § 316(a). Few applicants would be able to complete
the process before they must commence constructing off-stream
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-19-
cooling facilities. The approach we urge would accommodate the
§ 316(a) temporal dimension by relating the duration of
operation permitted under § 316(a) limitations to the
quantity of information reasonably available. By employing
this approach, EPA would facilitate establishment of § 316(a)
effluent limitations before the end of the year, provide
assurance of "protection and propagation" during the term of
the permit,and avoid requiring enormous expenditures for
off-stream cooling facilities which may prove unnecessary.
B. Unnecessarily Restricted Opportunity to Collect Additional
Data
If sufficient § 316(a) information is not available at
the conclusion of discharge permit proceedings, the proposed
regulations direct issuance of a permit which requires the
!}1*
19
18
permittee to achieve non-§ 316(a) effluent limitations, but
allows him subsequently to request a § 316(a) hearing.
Any deferred § 316(a) hearing must be scheduled so that the
permittee may take measures necessary to meet non-§ 316(a)
effluent limitations by the final compliance date specified
i ft
i039 Fed. Reg. 11439, § 122.10(b)(2) (1974). The applicant would
have to provide EPA with a § 401 certification from the state
before any such permit could be issued. 40 C.F.R. §§ 125.15,
125.21(a) (1973). It is unclear which, if any, thermal effluent
limitations would be applicable for purposes of § 401 certification,
19
Id. The permit must also include, as a schedule of compliance
a construction schedule for achieving offsstream cooling and must
require periodic reporting on construction progress. 40 C.F.R.
§ 125.23(b) (1973).
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-20-
20
in the permit. But since any such permit issued prior
to a § 316(a) determination must require compliance by dates
specified under §§ 301 or 304, the proposed deferral of § 316(a)
determinations alone is a non-solution to inadequate information:
construction may have to be started before a § 316(a)
determination can be obtained. If § 316(a) is to be given
practical effect for existing plants, then the final § 316(a)
regulations must provide for appropriate deferrals of compliance
deadlines for non-316(a) requirements, so that § 316(a)
issues may be resolved before commitments necessary only to
satisfy § 301 or § 304 need be made.
The proposed regulations unnecessarily restrict the
opportunity for assembling additional § 316(a) information
by requiring that deferred § 316(a) hearings be so timed
that the permittee can achieve compliance dates otherwise
21
imposed pursuant to §§ 301 or 304. The term "effluent
limitations" is defined by § 502(11) of the Act to include
22
schedules of compliance. Section 316(a) allows the imposition
2039 Fed. Reg. 11439, § 122.10(b) (3).
21
Permits must include schedules of compliance which, in cases
where construction would be required, impose interim compliance
dates. 40 C.F.R. §§ 125.22(b), 125.23 (1973).
2233 U.S.C. § 1362(11) (Supp. II, 1972). "Schedule of compliance;1
in turn, is defined as "a schedule of remedial measures including
an enforceable sequence of actions or operations leading to compliance
with an effluent limitation, other limitation, prohibition, or
standard." Id. § 1362(17), § 502(17).
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-21-
under § 301 of effluent limitations which will assure
"protection and propagation" if those otherwise applicable
are more stringent than necessary to assure that end. Thus,
§ 316(a) may be invoked to modify compliance dates, as well
as technological standards, otherwise imposed under § 301.
If achieving a technological standard by a given date is
unnecessary to assure "protection and propagation," a
different date may be established pursuant to § 316(a) and
imposed under § 301. Hence, schedules of compliance may be
established pursuant to § 316(a) which vary from the
compliance dates otherwise applicable under § 301.
It would be especially appropriate to adopt such a procedure
in order to afford § 316(a) applicants an adequate opportunity
23
to collect sufficient information and data. In such
cases, the applicant should be required to make a threshold
showing that continuation of its thermal discharge will not
preclude the protection and propagation of a "balanced,
indigenous population" during the period reasonably necessary
for the collection of the additional information. Based on
23
The general authority to establish schedules of compliance is
implicit in EPA's obligation to "apply, and insure compliance with,
any applicable requirement of sections 301, 302, 306, [and]
307 ... ." 33 U.S.C. § 1342(b)(l)(A). See id. § 1342(a)(2), (3)
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-22-
such a showing, § 316(a) limitations may be established in
a discharge permit, conditioned upon the permittee's
diligent data-gathering efforts. If the permittee is unable
to collect sufficient additional information within a
reasonable time, a schedule of compliance may be established
pursuant to § 316(a). The basis for the § 316(a) schedule
of compliance would be that continued operation during
construction of off-stream cooling facilities would not
cause substantial, irretrievalbe harm to the "balanced,
indigenous population" or preclude its protection once
construction was complete. Such a schedule would allow
the permittee to continue operation during construction of
facilities necessary to comply with the technology-based
effluent limitations otherwise applicable under § 301. In
the interim, as long as construction proceeded in accordance
with the § 316(a) schedule of compliance, the permittee
would be operating in compliance with § 301.
C. Deadlines for Compliance with Non-Section 316(a) Effluent
Limitations
Proposed guidelines under § 304(b) would require existing
steam electric powerplants to achieve off-stream cooling
(identified as the "best available technology economically
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-23-
0 /
achievable") by a phased schedule beginning July 1, 1978,
25
for large base-load plants, although § 301 does not require
26
that level of control to be achieved until July 1, 1983.
In order to meet a 1978 deadline for control of thermal
discharges, owners must begin to plan and construct control
facilities far in advance. With existing construction lead
27
time, for a large base-load unit to have off-stream cooling
28
installed and operating by July 1, 1978, planning and
2439 Fed. Reg. 8306, § 423.13(a) (1974). EPA concluded that
off-stream cooling, which it determined represented "best avail-
able technology," was not the "best practicable technology" for
existing plants, in part because it could not be installed by the
July 1, 1977 deadline if applicants were to be given the opportunity
to make a § 316(a) demonstration. Id. 8296.
25Idi § 423.13(a)(2)(i). Smaller base-load plants would have to
meet the same limitation by July 1,, 1979 or July 1, 1980. Id.
§ 423.13(a)(2)(ii) and (iii). Finally, by July 1, 1983, all exist-
ing generating units not to be retired before 1986 (large) or 1989
(smaller), would be required, regardless of size or utilization,
to employ off-stream cooling. Id. § 423.13(a) (2)(iv), and 8304,
§ 423.11(a), (b), and (c). There is, however, an exception pro-
vided for those units at plants with insufficient land reasonably
available, id. § 423.13(a)(3).
2633 U.S.C. § 1311 (b)(2)(A) (Supp. II, 1972).
27
Current lead times for the design and .construction of off-stream
cooling facilities will range from 34 months for mechanical-draft
cooling towers to 46 months for natural-draft towers. Utility Water
Act Group Thermal Engineering Technical Advisory Group, A Critique
of the Burns and Roe Report and Development Document for Proposed
Effluent Limitation Guidelines at 18, Attachment VII to Utility Water
Act Group Comments on EPA's proposed §§ 304 and 306 guidelines and
standards of performance (June 26, 1974). However, the lead times
are unlikely to remain constant in the fact of sharply increasing
demand for cooling towers that would result from adoption of the pro-
posed regulations under §§ 304 and 306 in their present form. A far
more likely result, judging from present severe materials shortages,
is the increase of lead times, especially as the 1978 compliance date
approaches.
90
Z039 Fed. Reg. 8306, § 423.13(a)(2^(1) (1974).
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-24-
design of natural-draft cooling towers would have to start
in mid-1974; and that of mechanical-draft towers, by the
29
middle of 1975. These dates determine the critical point
at which a § 316(a) determination must have been made or
commitments and expenditures for design or construction will
be necessary regardless of § 316(a).
The largest base-load generating units face the most
severe constraints. First, these units will be required to
30
achieve off-stream cooling by the earliest date. Generally,
backfitting of off-stream cooling facilities to these units
will be the most difficult, costly and time-consuming. Further,
since these units are also the ones which produce the greatest
quantities of heat, they may be the most difficult for which
•
to prove compliance with § 316(a). Finally, if a substantial
portion of large base-load units must employ off-stream
cooling by July 1, 1978, severe reliability problems will
29
These lead times will vary depending on site-specific conditions.
There have been instances in which the entire process was compressed
into less than half the normal time. However, compressing the lead
time will become increasingly infeasible as the number of towers
being constructed at the same time increases.
3039 Fed. Reg. 8306, § 423.13(a) (1974).
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-25-
31
result. Thus, the units which may be the most difficult
cases under § 316(a) and for which the magnitude of potential
error will be the greatest are required to achieve off-stream
cooling by the earliest date.
EPA offers no basis for its conclusion that these units
can be afforded an adequate opportunity to seek § 316(a)
limitations and still achieve off-steam cooling by July 1,
1978, if they fail to qualify under § 316(a). The judgment
does not appear to be based on realistic estimates of the
length of time required for either § 316(a) demonstrations
or for installation of off-stream cooling. Adherence to
the accelerated compliance schedule for "best available
technology" may precluded the effective operation of § 316 (a)
in contravention of the Act.
The dates for compliance with the technology-based
thermal effluent limitations should be based on a realistic
assessment of the time necessary for § 316(a) demonstrations.
Part of EPA's rationale for not prescribing off-stream cooling
as the "best practicable technology" was recognition of the need
31
See Attachment VIII, Utility Water Act Group Reliability Task
Group, Impact on Reliability of Utility Systems from Implementa-
tion of Proposed Federal EPA Effluent Limitations at 6
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-26-
32
to provide a reasonable opportunity for § 316(a) determinations.
However, the resulting schedule for compliance with the "best
available technology" requirement of § 301 does not follow
from the stated rationale. Achieving the prescribed non-§ 316(a)
compliance date will in many cases foreclose an effective
opportunity to make a § 316(a) demonstration. Where the
opportunity is lost, enormous, frequently unnecessary costs
will be incurred in order to backfit off-stream cooling
facilites. To avoid such a result, EPA should not accelerate
non-§ 316(a) compliance dates in effluent limitations guidelines.
Even if the Agency's conclusion were correct that the
statutory compliance dates may be generically accelerated,
effectuation of Congress1 § 316(a) intent would require that
it not be done in a way which frustrates the operation of
that section. Further, consideration of the national energy
situation militates against imposition of any non-statutory
33
schedule which results in severe shortages of electric power.
Thus EPA should revise the compliance dates in its proposed
3239 Fed. Reg. 8296 (1974).
3333 U.S.C. § 1314(b)(2)(B) (Supp. II, 1972).
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§ 304(b) guidelines to allow maximum flexibility in the
1978-83 period so that compliance with "best available
technology" may be timed to preserve § 316(a) and to avoid
n /
severe reliability problems. Further, EPA should allow
scheduling of any necessary backfitting construction and unit
outage time to be coordinated among neighboring systems and
within power supply pools and regional reliability groups.
D. Duplicative and Protracted Procedures
Even for § 316(a) applicants with sufficient information
available, unnecessarily time-consuming procedures pose
a major obstacle to securing § 316(a) effluent limitations
by the end of 1974. Under the proposed regulations, two
separate hearings, the first non.-adjudicatory, the second
See Utility Water Act Group Reliability Task Group, supra note
31, at 8-10 for minimum alternative scheduling adjustments to
protect system and regional reliability.
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-28-
35
adjudicatory, may be required. Procedures surrounding even
a non-adjudicatory hearing will require at least 90 days to
36
complete. If both types of hearings are held, eight months
could well be required to produce a final agency decision on
the § 316(a) request. Thus, to be assured of a decision on
a 316(a) request by the end of 1974, the notice of the re-
37
quest must have been issued by May 1, 1974.
35 39 Fed. Reg.11438-39, § 122.10 (1974). Within 30 days of a public
notice describing § 316(a) effluent limitations any person may request
a hearing. 39 Fed. Reg. 11437-38, §§ 122.6(b)(2), 122.10(a)(1).
(1974). If a hearing is granted there must be at least 30 days
notice prior to the hearing. 40 C.F.R. § 125.32(b)(2) (1973).
If this initial hearing is not adjudicatory, there is an additional
period of 20 days, following notice that the permit has been issued
or denied, in which interested persons may request an adjudicatory
hearing. Id. § 125.34(c)(1). The Regional Administrator then has
5 days in wTTich to rule on the hearing request. Id. § 125.34(f).
Notice must be given of an adjudicatory hearing at least 30 days
prior to the date fixed for the hearing. Id. After the hearing,
another 35 days will elapse before a tentative decision is required.
Id. § 125.34(o). Final decision must follow within 30 days, and
^Eere is an additional 30-day period for appeal following the deci-
sion. Id.
36 40 C.F.R. §§ 125.32(b), 125.34(b) (1974).
37
Failure of EPA (1) to provide reasonable procedures for obtaining
an NPDES permit by December 31, 1974, or (2) to consider the
inclusion of § 316(a) limitations and to act, if appropriate,
in time to issue the permit by that date may raise due process
questions if an applicant were thereby subjected to a choice among
(a) exposure to criminal or civil liability, (b) ceasing operation,
or (c) waiving any right to a fair § 316(a) determination.
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The potential for delay in duplicative hearings is
unnecessary. Since any decision reached in the first, non-
adjudicatory public hearing is subject to reexamination during
•so
an adjudicatory hearing, the non-adjudicatory hearing will
not necessarily resolve any issues concerning the permit,
though it adds nearly three months to the process. These
factors virtually assure that any contested permit proceeding
cannot be completed before December 31, 1974. Under the
proposed regulations avoidance of this delay, even where the
application is uncontested, is a matter of chance.
The problem would be less severe if only one hearing
were involved. With a single non-adjudicatpry hearing, at least
90 days must elapse between notice of permit application and
the effective date of a permit incorporating § 316 (a) alternative
39
effluent limitations. If a single adjudicatory hearing is
3839 Fed. Reg. 11438-39, § 122.10(a) (1974).
3940 C.F.R. § 125.32(b)(l) and (2), 125.34(b)(4) (1973). Apparently
non-adjudicatory hearings may be held only when alternative § 316(a)
effluent limitations are proposed in the public notice of the permit
application. See 39 Fed. Reg. 11437, § 122.6(b)(2) and 11438-39,
§ 122.10(a) (1975). The proposed alternative effluent limitations
must be based on demonstration of "no appreciable harm" or protec-
tion of "representative important species." 39 Fed. Reg. 11437-38,
§ 122.8(a) (1974). If the latter route is chosen, the notice may
be delayed pending selection of the species. Id. § 122.8(a)(2)(ii).
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held, 5 months must elapse between the public notice of
the permit and final agency decision on a § 316(a) request.
EPA should accordingly allow an applicant, through a
prompt request for an adjudicatory hearing following notice
41
of public hearing, to obtain a single adjudicatory hearing,
pre-empting the non-adjudicatory hearing. The applicant
has the most immediate and direct interest in a prompt § 316(a)
determination. Consequently, he will be best situated to
determine whether the issues to be raised in the non-adjudicatory
hearing with respect to proposed § 316(a) limitations are
42
substantial enough to justify an adjudicatory hearing.
Also, he will be unlikely to request the lengthier adjudicatory
hearing except in cases where both types of hearing appear
inevitable otherwise. Eliminating the possibility of redundant
hearings would be consistent with Congress1 directive to
/ O
avoid unnecessary duplication to the maximum extent possible.
4039 Fed. Reg. 11439, § 122.10(a)(2) (1974); 40 C.F.R. §§ 125.32(b),
125.34(c), (f), (k), (o)-(q) (1973).
4140 C.F.R. § 125.34(b)(l) (1973).
A public hearing may be held only where § 316(a) limitations are
included in the public notice of public application. 39 Fed. Reg.
11438, § 122.10(a) (1974).
4333U.S.C. § 1251(f) (Supp. II, 1972).
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The applicant should be able as well to elect to sever
a § 316(a) hearing from the remainder of a § 402 permit pro-
ceeding. In many cases determination of the permit conditions
for control of pollutants other than heat may be a simple,
mechanical matter. In a separate § 316(a) proceeding the
issues would be more clearly focused and perhaps more easily
44
resolved. Unnecessary delay would be avoided.
44
40 C.F.R. § 125.34(c) (1973). Adoption of these recommended
changes in procedure will not reduce the opportunity for public
participation since any person may submit a request to be a
party to the adjudicatory hearing.
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III.
SUBSTANTIVE STANDARDS
The substantive requirements for implementing § 316(a) will
determine its availability. Proposed § 316(a) regulations and
the accompanying Manual would define the population which must
be protected so narrowly that the potential availability of
§ 316(a) is unjustifiably restricted.
In addition, the proposed regulations fail to adopt other
valid and reliable criteria of substantive qualification for
§ 316(a). Compliance with water quality standards, for instance,
should qualify applicants for § 316(a) approval. Unless the
final § 316(a) regulations are rewritten to correct these
deficiencies, this section, and the intent of Congres.s, will
be virtually nullified by administrative action.
A. Definition of the Population to be Protected
1. The Proposed Regulations
Definition of the "balanced, indigenous population" to be
protected under § 316(a) is crucial to that section's proper
interpretation and implementation. The definition in the
proposed regulations recognizes that "[s]uch a population may
The EPA economic analysis for proposed regulations for steam
electric powerplants under §§ 304 and 306 estimates that a
majority ranging from 50 to 80% of plants subject to those re-
quirements will obtain limitations under § 316(a). See note
5, supra.
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include historically non-native species . . . and species whose
presence or abundance results [or has resulted] from substantial,
irreversible environmental modifications."
But the proposed regulations include two significant limi-
tations on what may comprise a "balanced, indigenous population":
it (1) must be "typically characterized by ... non-domination
of pollution tolerant species" and (2) "[njormally will not
include species whose presence or abundance is attributable to
the introduction of pollutants. The preamble to the regula-
tions explains:
In areas of poor water quality, modification of
thermal limitations would be appropriate only
if they would assure protection of those species
which could be expected to exist if the receiving
water met water quality criteria designed to pro-
tect fish, shellfish and wildlife. 48
The Manual reflects the more stringent limitation that "the
population must be consistent with the restoration and the
*°39 Fed. Reg. 11436, § 122.l(h) (1974). Thus the regulations
properly indicate that in order "[t]o qualify for an exemption
under § 316(a) it is ... not necessary to show that the dis-
charge is compatible with a population which may have existed
in pristine environment but which has not persisted. Id.
11435, 17. ~~
47Id. 11436, § 122.l(h).
48Id. 11435, 1f 7.
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maintenance of the biological integrity of the water."
Thus, these provisions combine to engraft upon § 316(a)
an apparent requirement that the applicant demonstrate enhance-
ment of existing aquatic populations. To the extent that these
requirements may result in imposition of thermal limitations
under §§ 301 or 306 to protect aquatic populations which
could not otherwise be reasonably expected to exist in the
water body during the term of the permit in question, they
would subvert the intent of § 316(a). Both the legislative
history of the 1972 Amendments and common sense suggest that
the "balanced, indigenous population" sought to be protected
under § 316(a) is that which could reasonably be anticipated
to exist or come into existence during the term of a permit
containing § 316(a) limitations.
2. The Legislative History
Section 316(a) speaks of assuring protection of a "balanced,
indigenous population ... in and on the body of water into
which the [thermal component of the] discharge is to be made."
Without further qualification, this language suggests that the
primary focus is on protecting the aquatic population indigenous
to the body of water as it exists at the time of the § 316(a)
determination. This construction is reinforced by the expres-
sion of legislative intent during House debate on the Conference
49
Environmental Protection Agency, note 2, supra.
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Report. Mr. Clausen explained on behalf of the Managers for
the House that:
It is . . . intended that in making such deter-
mintations [of alternative effluent limitations
pursuant to § 316(a)], 'balanced1 shall be inter-
preted to mean a reasonable maintenance of aquatic
biology and not the demonstration of enhancement
thereof. 'indigenous'shall be interpreted to
mean growing or living in the body or stretch of
water at the time such determination is made. 50
Mr. Johnson's remarks indicate that, as a conferee, he shared
Mr. Clausen's understanding. Thus, by "balanced, indigenous
population," the House Conferees were calling for "reasonable
maintenance" of the aquatic population actually growing 01
52
living in the relevant body of water.
On the same side, Senator Muskie's view of the intent of
the Conference Committee as to § 316(a), inserted into the
Record during the final Senate debates, reflects a somewhat
different perception of the section from that held by House
conferees. According to Senator Muskie,
It is not the intent of [§ 316(a)] to permit
modification of effluent limits . . . where existing
or past pollution has eliminated what would other-
wise be an indigenous fish, shellfish and wildlife
population. The owner . . . must show . . . that a
"balanced, indigenous population ..." could
exist .... 53
50118 Cong. Rec. 9130 (daily ed. Oct. 4, 1972), 1 Legis. Hist. 264
(emphasis added).
51Id. 9131, 1 Legis. Hist. 267.
52
The House view gains added force by virtue of the fact that the
policy expressed in § 316(a) originated in the House amendments
to the Senate bill.
53Id. 16875, 1 Legis. Hist. 175. That Senate leadership generally
did not contemplate a return to pristine conditions is evident from
the exchange between Sen. Eagelton, while acting as floor manager
(Continued)
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The phrase "what would otherwise be an indigenous . . . popula-
tion" suggests that the population Senator Muskie sought to
protect is not that which is actually growing or living in
the body of water at the time of a § 316(a) determination, but
rather an historical or imaginary population.
The apparent conflict between the expressions of intent
of House leaders and those of Senator Muskie can be resolved by
viewing the "balanced, indigenous population" which is to be
protected in the context of the duration of any permit con-
taining alternative § 316(a) effluent limitations. Necessarily,
(Continued)
of S.2770, and Senator Buckley. 117 Cong. Rec. 17416 (daily ed.
Nov. 2, 1971), 2 Legis. Hist. 1301.
It is also significant that a provision which would have pro-
hibited the issuance of any permit "unless such permit shall assure
the maintenance and enhancement of the quality of any affected
waters," and thus would have been consistent with language in the
proposed regulations (text at notes 50-52, supra), was deleted in
Conference. S.2770, 92d Cong., 1st Sess., § 402(h) (1971); H.R.
11896, 92d Cong., 2d Sess., § 402(g) (1971), 2 Legis. Hist. 1691;
S. Rep. No. 1236, 92d Cong., 2d Sess. 140 (1972) (hereinafter cited
as Conference Report), 1 Legis. Hist. 323.
Normally this will be five years from the date the permit becomes
effective for an existing plant unless the applicant makes modifi-
cation to meet § 316(a) limitations. See 33 U.S.C. § 1342(b)(1)(B)
(Supp. II, 1972). In the latter case the relevant period becomes
ten years from the date of the completion to the modification. Id.
§ 1326(c). The term of the permit may, however, be for periods
less than five years where there is a necessity for an initial
§ 316(a) determination to be made and a period for data gathering
provided for subsequent action on a request for a longer term permit.
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the population of interst is that which can reasonably be
expected to inhabit the pertinent water body during the term
of the permit.
Thus, the superficially inconsistent positions taken in
the House and the Senate are reconciled with this interpreta-
tion. Though Mr. Clausen's remarks focus on protection of the
aquatic population inhabiting the water body as it exists at
the time of the § 316(a) determination, nothing in them pre-
cludes taking advantage of reasonably anticipated improvements
in water quality during the term of the permit.
Similarly, Senator Muskie's remarks, which focus particu-
larly on thermal discharges into presently heavily polluted
water bodies, reflect a concern that the present, drastically
altered population of such waters should not be taken as their
"indigenous" population in perpetuity, and that attention be
devoted as well to the population likely to inhabit such waters
as their progressive restoration is reasonably anticipated.
"Indigenous" should therefore be interpreted to describe the
population which could exist in water of a quality which might
reasonably be achieved during the term of a discharge permit
containing alternative effluent limitations under § 316(a).
The preamble to the § 316(a) regulations makes the same point
when it notes that determining an indigenous population for
purposes of § 316(a) "in all cases" by its present composition
would unfairly reward dischargers located on heavily polluted
waters . . . /' 39 Fed. Reg. 11435 (1974).
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-38-
3. The Permit-Period Population Test
Clearly, the aquatic population which can be postulated
for protection under a permit containing § 316(a) limitations
depends on the water quality of the water body during the per-
mit period. Approved water quality standards for chemical and
other non-thermal aspects of water quality, taken as of the
date of the 316(a) determination, will usually provide a use-
ful benchmark to gauge both the probable quality of the water
and the aquatic populations which might be expected to exist
upon attainment of those standards, without the artificial
addition of heat. Moreover, these standards should also pro-
vide a rough measure of the anticipated* aquatic populations
which can be the object of "protection and propagation" by
reasonable § 316(a) thermal limitations during the term of a
discharge permit.
In many water bodies, especially those presently or recently
subject to heavy chemical or biological pollution, water quality
standards will not be met instantly. Moreover, once compliance
with water quality standards is attained, time will be required
for the regeneration of the full aquatic population which the
water body will ultimately be capable of supporting at a given
level of water quality.
Thus, to postulate as the basis for determining the "balanced,
indigenous population" to be protected under § 316(a) that
population which can be sustained in water of the quality pro-
jectable within the permit period is to impose an inherently
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-39-
optimistic view of the aquatic population of interest, and a
correspondingly conservative limit on the thermal discharges
subject to approval under § 316(a). In setting limitations by
this method, it should not be necessary to speculate on changes
which may or may not take place in water quality criteria during
or following the term of § 316(a) effluent limitations. On
the other hand, actual and anticipated water quality improve-
ments stemming from compliance with effluent limitation guide-
lines under § 304 and standards of performance under § 306
during the permit period (except thermal limitations) would be
relevant.
a. Non-thermal Water Quality Criteria as a
Determinant
Reliance only on non-thermal aspects of water quality
criteria in determining the balanced, indigenous population to
be protected under § 316(a) is justified by the assumption that
virtually any variation in the amounts of heat added to a water
body, whether from natural or artificial sources, will affect
the vital characteristics of nearly all species of aquatic life
In some water bodies, water quality standards may not be rea-
sonably attained during the duration of a permit containing
§ 316(a) limitations. In this case, the principle of defining
a "balanced, indigenous population" in terms of a population
which can be reasonably anticipated during the permit term
should still apply. The only modification would be to use non-
thermal water quality levels expected to be achieved, rather
than non-thermal water quality standards, as the baseline for
determining the anticipated population.
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-40-
differently. In some instances such variation may alter the
overall mix of species within a water body. In general, any
addition of any heat will favor so-called "warm water" species
in relation to so-called "cold water" species. It will also
increase the overall biomass within the water body as a whole.
Accordingly, to read the phrase "balanced, indigenous popula-
tion" as requiring precise maintenance of the population as it
would exist without the addition of any artificial heat would beg
the question obstensibly being asked under § 316(a). It would
also effectively foreclose the use of that section.
Realistically, in erecting the "balanced, indigenous pop-
ulation" requirement, Congress expressed its primary concern
that beneficial recreational and commercial fisheries should be
maintained (or restored where practically feasible) on any
given water body. Thus, in the administration of § 316(a),
the social desirability of various species within pertinent
thermal regimes, both with and without discharges, must be
examined.
The starting point of any such inquiry should be in distin-
guishing between commercially and recreationally valuable aquatic
communities which, whether composed of "cold-water" or "warm-
water" species, might be classified as beneficial communities,
The proposed regulations would exclude from the "balanced, indi-
genous population" species whose "presence or abundance is attri-
butable to the introduction of pollutants." 39 Fed. Reg. 11436,
§ 122.l(h) (1974). Since heat is included in the Act's definition
of "pollutant," 33 U.S.C. § 1362(b) (Supp. II, 1972), the regula-
tions may be construed to exclude viable, beneficial aquatic
communities existing under the influence of thermal discharges.
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-41-
on the one hand, and non-beneficial communities on the other.
Congress could hardly have intended that the term "indigenous"
always had to be read to prohibit maintenance or encouragement
of beneficial aquatic communities simply because a different
community would have existed in the total absence of the dis-
charge, without regard to whether that different community
would have been beneficial. Accordingly, the presence and
viability of beneficial communities which are compatible with
the thermal discharge should be a factor in determining the
composition of the "balanced, indigenous population" even where
it is different from the population which might exist under
more pristine conditions.
b. Receiving Water Body Type as a Determinant
A second factor in determining a socially desirable
"balanced, indigenous population" to be protected relates to
the type of water body into which the discharge would flow. If
it is a natural stream or lake or the ocean, normally maintenance
of principal beneficial species reasonably expected to be pre-
sent without the § 316(a) discharges should be required. If, on
the other hand, the water body is man-made, consideration should
be given to the reasons which led to its creation. Many existing
man-made lakes and ponds would never have been created but for
their use as cooling technology. Others will not be built in
the future if use for cooling technology is to be barred through
EPA's combined implementation of §§ 306 and 316(a). In some
cases warm water species that are beneficial may have been
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-42-
deliberately introduced or may have entered or now be in abun-
dance as a result of the man-made conditions (both impoundment
plus heat). It would be grossly unreasonable to require the
banishment or reduction of these beneficial species under a
rigid no-variation rule.
The recommendations above are no more than an amplification
of the logic contained in the preamble to the proposed § 316(a)
58
regulations, and given express -recognition in proposed
§ 122.l(h). Under that section, a "balanced, indigenous popula-
tion" may include "historically non-native species introduced
in connection with a program of wildlife management and species
whose presence or abundance results from substantial, irreversible
environmental modifications." Adoption of these recommendations
would remove the confusion now likely to result from use of the
phrase "pollution-tolerant" species in that section.
In sum, "balanced, indigenous population" should be defined
as that population which can be expected to exist in the water
CO .
The preamble explains,
The description in the regulations recognizes that an indi-
genous population may contain species not historically native
to the area which have resulted from major irreversible modi-
fications to the water body (such as hydroelectric dams) or
to the contiguous land area (such as deforestation attributable
to urban or agricultural development) or from deliberate intro-
duction in connection with a program of wildlife management.
To qualify for an exemption under section 316(a) it is there-
fore not necessary to show that the discharge is compatible
with a population which may have existed in a pristine en-
vironment but which has not persisted.
39 Fed. Reg. 11435 (1974).
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-43-
body as a whole during the term of the permit containing the
en
§ 316(a) limitations. Section 316(a) alternative effluent
limitations should be denied only where continuation of the
discharge during that period would preclude the maintenance
or existence of a viable, beneficial aquatic community. Thus
construed and implemented, the § 316(a) "projection and propa-
gation" test would become a periodically self-adjusting standard,
complementing the statutory goal of increasingly stringent
water quality standards and non-thermal effluent limitations.
Such a policy would also ensure that unnecessary or premature
expenditures were not made for the control of thermal discharges.
B. Recognition of Compliance with Thermal Water Quality Standards
In addition to clarifying the substantive standards in the
proposed regulations so as to make them workable, it would greatly
expedite initial § 316(a) determinations to include an additional
substantive test providing that compliance with approved water
quality standards gives rise to a presumption that the require-
ments of § 316(a) are satisfied. In the case of many plants
59
A related question is the degree to which future heat loads
should be projected in allocating the assimilative capacity of
the water body. Information generated pursuant to § 303(d) will
provide useful guidance on the assimilative capacity of the re-
ceiving waters and existing heat loads. We believe that alloca-
tion of the assimilative capacity among present and future ther-
mal discharges should be done on a "first-come, first-served"
basis. Thermal control technologies can be designed and built
into new plants more cheaply than they can be backfitted to
existing plants. Further, new plants have siting alternatives
not available to existing plants. Thus, we believe that
§ 316(a) determinations should not be predicated on projections
of future thermal loads.
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-44-
there have already been determinations by competent government
agencies that the existing or proposed thermal discharge is in
compliance with EPA approved water quality standards. Where
these prior determinations exist, they can and should be
given effect for § 316(a) purposes.
The language of the statute and its legislative history
indicate that § 316 (a) •'s "protection and propagation" standard
can be satisfied by showing that the thermal discharge meets,
or will meet, applicable water quality standards in effect at
the time of the § 316(a) determination. Section 303(g) directs
that "[wjater quality standards relating to heat shall be con-
sistent with the requirements of section 316 of this Act."
Therefore, water quality standards relating to heat must "assure
the protection and propagation of a balanced, indigenous popula-
tion of shellfish, fish, and wildlife in and on the body of
water into which the [thermal] discharge is to be made . . . ."
Further, the Administrator is under a continuing duty to
revise or establish new water quality standards promptly when-
ever he "determines that a revised or new standard is necessary
62
to meet the requirements of this Chapter," including those of
6033 U.S.C. § 1313(g) (Supp. II, 1972).
61Id. § 1326(a). The requirement in § 303(g) for consistency with
§ 3T6(a) means that water quality standards cannot be more string-
ent than necessary to assure the protection and propagation of a
balanced, indigenous population. Failure to provide relief from
excessively stringent thermal water quality standards is not con-
sistent with the intent of § 316(a) to provide such relief.
62Id. § 1313(c)(4)(B).
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-45-
§ 316(a). Accordingly, compliance with those standards approved
6 "i
or promulgated by EPA is demonstrative of "protection and
propagation of a balanced, indigenous population."
Such a construction of § 316(a) is consistent with the
statement of legislative intent in the House. Mr. Jones, cha:.•
man of the House managers of the conference, summarized § 316(3N
for his colleagues:
[Section 316(a)] provides that the EPA Administra-
tor may waive the requirements of Sections 301 and
306 of the Act ... if the owner or operator . . .
demonstrates . . . that the given thermal discharge
could be at a higher level . . . and still be in
accordance with water quality standards or other-
wise assure the protection and propagation of a
balanced,indigenous population of shellfish,Fish,
and wildlife in and on the body of water into which
the discharge is to be made. 64
This statement by Mr. Jones, a principal figure in the conference
which drafted § 316(a), establishes his clear understanding that
compliance with water quality standards satisfies the "protect
and propagate" test under § 316(a).
Establishment of initial § 316(a) effluent limitations on
the basis of compliance with existing water quality standards
will not interfere with achieving revised water quality standards
63Id. § 1313(a), (b).
64118 Cong. Rec. 9120 (daily ed. Oct. 4, 1972), 1 Legis. Hist.
239 (emphasis added).
States must periodically review their standards and revise them
as necessary. 33 U.S.C. § 1313(c) (Supp. II, 1972).
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-46-
or attaining the general goals of the Act. Revision of stand-
ards and subsequent enhancement of water quality by removal of
pollutants other than heat will change the composition of the
biological community which can be expected to live in that water,
particularly where the water is presently heavily polluted.
Thus, the "balanced, indigenous population" which § 316(a) seeks
to protect may change. If § 316(a) thermal limitations do not
assure protection of the "balanced, indigenous population" as
it is redefined in light of enhanced water quality, they should
68
be modified in any subseqent permit.
Section 101(a) declares, "The objective of this Act Is to restore
and maintain the chemical, physical, and biological integrity of
the Nation's waters." The objective is to be achieved, consistent
with the provisions of the Act, by the attainment of an ultimate
goal of eliminating the discharge of pollutants by 1985 and an
interim goal of achieving a quality (bif water wherever attainable,
which provides for "fishability" and "swimmability" by July 1,
1983. However, neither the objective nor the goals are absolute
imperatives. They are to be achieved only by controls which are
"consistent with the provisions of [the] Act." Section 316(a)
establishes the principle that limitations on thermal discharges
under §§ 301 and 306 are to be no more stringent than necessary to
assure protection and propagation of the aquatic population. 11",
Cong. Rec. 9129-31, 9133 (daily ed. Oct. 4, 1972), 1 Legis. Hist.
263-64, 267-68, 273.
'See discussion at 32-43, supra.
68Codification of thermal effluent limitations for cause need not
await the expiration of an existing permit. Any permit which is
issued, whether by EPA or a state, must be such that it can be
terminated or modified for cause, including a "change in any condi-
tion that requires either a temporary or permanent reduction or
elimination of the permitted discharge . . . ." 33 U.S.C.
§ 1342(a)(3), (b)(l)(C)(iii) (Supp. II, 1972)'. Marked change in
water quality may be a sufficient "change in condition" to
justify modification of §'316(a) thermal limitations which do not
assure protection of the newly-defined population. The 10-year
grace period provided in § 316(c) precludes the amendment of
§ 316(a) limitations only where (1) the point source was modified
after October 18, 1972, (2) as modified it meets effluent limitations
of § 301 or § 303 (if more stringent), and (3) those effluent limi-
tations "will assure the protection and propagation of a balanced,
indigenous population . . .••.-, Id. § 1326(c).
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EPA's recognition and adoption of this test would facilitate
the granting of § 316(a) requests for perhaps one-fourth of
the existing generating capacity in the country. In many of
these cases, competent government agencies will have already
made a prior determination of compliance with water quality
standards in connection with a decision on a certification,
permit, license or other authorization. Where there has
been such a prior determination of compliance, EPA should
give it effect unless the thermal criteria in the water
quality standards have changed materially since the
determination. Doing so would streamline and simplify the
§ 316(a) administrative process by making full use of
appropriate prior determinations in furtherance of the
national policy to "prevent needless duplication and
unnecessary delays" in administration of the Act7^
Several types of prior determinations have an especially
compelling claim to recognition. First, § 21(b) certifications
The summary of questionnaire results in Attachment C suggest
that only 7,000 MWe of existing capacity not in actual compli-
ance with water quality standards have received state certifi-
cation of compliance. Compare Questionnaire item 3 with item
4c. The recommended regulatory language for the water quality
standards demonstration, Attachment B, 39 Fed. Reg. 11438, §§
122.8(a)(2), 122.9(b) (1974), would permit the Regional Admini-
strator to reexamine the prior determination if there were sub-
stantial evidence that it was erroneous.
7033 U.S.C. § 1251(f) (Supp. II, 1972).
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-48-
issued prior to the enactment of the 1972 Amendments neces-
sarily involved a finding of "reasonable assurance" of compli-
ance with applicable water quality standards which, for the
most part, were designed to protect fish and aquatic life
uses. Those certifications were continued 'in full force and
effect" by § 4(b) of Pub. L. No. 92-500 and have been recognized
by EPA as equivalent to § 401 certifications. Their use to
prove compliance with water quality standards is thus especially
appropriate unless the standards have been changed materially
since the certification.
Second, § 401 certifications issued in the interim between
enactment and promulgation of effluent limitation guidelines
and standards of performance for steam electric powerplants
may recite a determination of compliance with the relevant
water quality standards. Where these determinations have been
made and compliance certified by responsible states, they should
be respected by EPA.
Third, a state discharge permit, if any, will almost in-
variably have involved a finding of compliance with applicable
state water quality standards for fish and aquatic life uses,
or with an equivalent substantive test. Whether such a specific
finding was made will depend upon the nature of the requirements
Letter from John R. Quarles, Jr.> EPA Assistant Administrator
for Enforcement and General Counsel to H. Edward Dunkelberger,
Jr., April 6, 1973.
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-49-
under state law. If a prior determination was made with respect
to the discharge permit, it should be sufficient for § 316(a).
Finally, the prior determinations with the strongest
claim to EPA recognition are those of the Atomic Energy Commis-
sion (AEC) which are represented by construction permits or
operating licenses. If those permits and licenses have been
issued or continued in effect since the AEC-EPA Memorandum of
72 73
Understanding and contemporaneous AEC Interim Policy Statement,
they reflect a finding by either a state (in a § 401 certifica-
tion) or the AEC that the thermal discharge will be in compliance
with existing water standards. The Memorandum, especially in
light of the policy against needless duplication of regulatory
effort expressed in § 101(f) of the FWPCA, indicates that EPA
should respect the AEC's actions in discharge of its NEPA^related
responsibilities, as modified by the FWPCA, during the interim
until the FWPCA is fully implemented. AEC findings of compliance
should therefore be given full effect.
Even without the Memorandum of Understanding, Commission
actions pursuant to its NEPA obligations, as clarified by
Calvert Cliffs' and implemented by Appendix D to Part 50 of
10 C.F.R., merit recognition by EPA. The AEC licensing process
7238 Fed. Reg. 2713 (1973).
7338 Fed. Reg. 2679 (1973).
74TH « S
Id. if 5.
75National Environmental Policy Act, 42 U.S.C. §§ 4321 ej: seq. (1970)
7 Calvert Cliffs' Coordinating Comm. v. AEC, 449 F.2d 1109 (D.C.
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-50-
entails thorough, careful review of water quality impacts of
the proposed data. The review is based on extensive informa-^
tion of the same type that is being required by EPA in connec-
tion with discharge permits. Failure to recognize and give
effect to AEC decisions in a subsequent § 316(a) determination
would be completely inconsistent with avoiding needless dupli-
78
cation in administration of the Act.
Thus, adoption and implementation of the water quality
standards method of proof would be consistent with §316(a)
and congressional intent. It would not interfere with attaining
* * < .
the goals of the Act and would greatly simplify the administra-
tion of § 316(a) in the initial period.
77See 10 C.F.R. 50, App. D, § A 4, 8.
78See 33 U.S.C. § 1251(f) (Supp. II, 1972).
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-51-
IV. .
TIMING OF DETERMINATIONS FOR NEW SOURCES
Section 316(a) provides for the establishment of al-
ternative standards of performance for new sources in lieu
79
of those otherwise applicable under § 306. Once estab-
lished for a particular new source, these § 3l6(a) limita-
tions become the applicable thermal standards of perfor-
80
mance under § 306 to be imposed in an NPDES permit.
But, pursuant to § 401, before any federal license or
81
permit, including an NPDES permit from EPA, may be
issued, the state in which the discharge originates must
certify that the discharge will be in compliance with all
applicable standards of performance. Any certification
must set forth limitations necessary to assure that the
applicant will comply with all applicable requirements
of the Act. These limitations then become conditions of
00
the federal license or permit. Thus, if § 316(a) is to
7933 U.S.C. § I326(a) (Supp. II, 1972). A "new source"
is "any source, the construction of which is commenced after
the publication of proposed regulations prescribing a standard
of performance ... which will be applicable to such source, if
such standard is thereafter promulgated ...." Id. § 1316(3)(2).
"Construction" includes contractual obligations to purchase
equipment and site preparation work. Id. § I3l6(a)(5).
80
Section 316(a) provides that "the Administrator (or, if
appropriate, the State) may impose an effluent limitation under
such sections [sections 301 and 306] . . '.' ." Id. --*•—•«-
81
Id. § 1341. If the state is issuing discharge permits under
an ETA-approved NPDES permit program, the § 401 certification
prerequisite is inapplicable since it applies only to "federal
license or permit."
82 Id. § 1341(d).
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cover new sources as Congress intended, the procedures for
implementing § 316(a) must allow for § 316(a) determinations
prior to, or at the time of, state certification. Further, the
certification must in turn precede the granting of any federal
construction permit required. And, in order that site and
design decisions can be made with a reasonable degree of confi-
dence, § 316(a) determinations must be made before application
for the construction permit.
The proposed regulations, however, do not make adequate
provision for preconstruetion, § 316(a) determinations for new
83
sources. The proposed suspension mechanism to allow making
§ 316(a) determinations prior to the § 401 certification is
inadequate for new sources. For them, it solves only part of
the problem. Several problems remain. First, there is no clear
provision or mechanism for preconstruetion determination of
§ 316(a) issues either in conjunction with or apart from § 402
proceedings. Second, although EPA may deem a waiver of the
00 Under the proposed regulations, requests for § 3l6(a)
limitations must be made upon application for a § 402 dis-
charge permit. 39 Fed, Reg. 11437, § 122.5 (1974). If the dis-
charge permit application is to EPA, the applicant is to
notify the state certifying agency and this notice con-
stitutes a withdrawal of any pending certification request
and suspends the running of the period of time within which
the certifying agency must act. Id. 11437, § 122.7. EPA
subsequently must notify the certifying agency of its decision
on the § 3l6(a) request; this notice effects a resubmission
of the certification request and a resumption of the time
within which the certifying agency must act. Id. See note
85, infra.
The need for preconstruction issuance of § 402 permits for
new sources to effect § 306's policies of predictability and
finality is discussed in the general context of regulation of
new sources in section V.B. of Attachment I-A to Utility Water
Act Group Comments on proposed §§ 304(b) and 306 effluent limita-
tion guidelines and standards of performance for steam electric
powerplants (June 26, 1974).
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-53-
certification requirements to have occurred after 3 months for
purposes of issuing § 402 permits, other federal licensing and
85
permitting agencies may allow a full year Lo elapse. In
order to facilitate early § 316(a) determinations and to avoid
unnecessary delays in the certifying-licensing-permitting
process for new powerplants, the regulations should afford new-
source applicants additional flexibility.
First, EPA's existing regulations in 40 C.F.R., Parts 124
and 125, should be amended to make clear that preconstruetion
§ 402 discharge permits incorporating § 316(a) thermal limi-
o/-
tations may be issued.
Second, the § 316(a) regulations should be revised before
adoption to allow the Regional Administrator (or State Director)
to set § 316[a) alternative thermal limitations promptly after
receipt of a § 316(a) request, regardless of the status of the
§ 402 discharge permit proceedings. Since the Act does not
require consolidation of the § 316(a) proceeding with considera-
87
tion of other issues relevant to the § 402 permit, it is
85
If the certifying agency fails or refuses to act on a certi-
fication request "within a reasonable period of time (which shall
not exceed one year)" the certification requirement is waived.
33 U.S.C. § 134l(a)(l) (Supp. II, 1972). Existing EPA regulations
provide that three months will generally be considered a "rea-
sonable period of time," although the Regional Administrator may
vary this period where warranted by the circumstances. 40 C.F.R.
§ 125.15(a) (1973).
fifi
00 For a more detailed explanation of the effect of these permits
see section V.C. of Attachment I-A to Utility Water Act Group
Comments, note 84, supra.
8? Section 316(a), independently of § 402, directs EPA (or
the state) to provide an opportunity for a hearing on any
§ 3l6(a) request. There is no suggestion in the Act that this
hearing must be consolidated with that required under § 402.
Though administrative convenience and expedition will normally
favor consolidation, the regulations should not foreclose
early § 3l6(a) determination where appropriate to avoid delay.
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-54-
unnecessary to delay the § 316(a) determination because other
permit issues are undecided. Following notice and opportunity
for a hearing on the § 316(a) request, the permit grantor should
either establish an alternative thermal limitation or deny the
88
request. Once established, the §.316(4) thermal limitation
would not be subject to challenge at any later hearing on the
§ 402 permit. As the thermal limitations applicable to the
facility under § 306, the § 316(a) limitation would then be
included in the § 402 discharge permit.
Third, the regulation should allow the certifying agency
to certify that there are no applicable thermal provisions
where a § 316(a) request has been filed for a new source and
the NPDES administrator has determined that additional informa-
tion is required to substantiate the request. If needed, infor-
mation will take substantial time to develop. The applicant
should be able to receive a certification so that issuance of a
federal construction license need not be delayed indefinitely
QQ
pending resolution of the § 316(a) issues, Section 401(a)(l)
88
The decision would be reviewable in the United States Court of
Appeals as an administrative action under § 301 of the Act. 33
U.S.C. § 1369(b).
89
Where a shorter time would be sufficient to collect needed
information, § 316(a) limitations should be established and
imposed under the terms and conditions which we recommend in
Part II.A. of these Comments. These limitations and require-
ments would then provide the basis for a § 401 certification.
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-55-
provides an appropriate resolution:
In the case of any such activity [which may result
in any discharge into the navigable waters] for
which there is not an applicable . . . standard
[of performance] under [section] 306 . . ., the
State shall so certify ....
Once a § 316(a) request is filed, there are no applicable ther-
mal standards under § 306 until the determination is made. Final
action on the request determines the applicable standard.
Adoption of this recommendation would eliminate unnecessary
delay while in no way frustrating the purposes of the Act. The
certifying agency will have a further opportunity under §§ 401(a)
(3) and (4) to reexamine the facility's compliance with appli-
cable thermal standards after they are established. Further,
the § 402 permit required for any discharge must assure compli-
ance with all applicable standards and limitations.
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A-l
APPENDIX
SUMMARY OF PROPOSED REGULATIONS TO
IMPLEMENT SECTION 316(a)
The proposed regulations tie the administration of § 316(a)
to the permit program under the National Pollutant Discharge
Elimination System (NPDES). Thus, an applicant must give
notice of its desire for § 316(a) alternative limitations at the
2
time of filing a discharge permit application. Following this
notice, the applicant has 60 days within which to submit avail-
o
able data and information in support of its § 316(a) request.
In practice this 60-day period will also be a time of negotia-
tions between the applicant and the permitting agency to determine
the type and quantity of information to be submitted.
I
Public notice of the permit application is the next signi-
ficant step in the process. By this time the agency must have
reached a tentative decision on whether § 316 (a) limitations
should be permitted in lieu of those specified in § 304 or § 306
regulations. If § 316(a) limitations are proposed in the notice,
The NPDES is established by § 402 of the Act. 33 U.S.C. § 1342
(Supp. II, 1972). EPA will operate the NPDES permit program ex-
cept where a state requests permit authority and EPA approves its
proposed permit program.
239 Fed. Re^ 11437, § 122.5(1974). In cases in which discharge
permit applications were filed prior to publication of the proposed
§ 316(a) regulations, notice must be given within 60 days of the
notice of promulgation of § 316(a) regulations or promulgation of
§ 304(b) guidelines. Applicants must at the same time notify the
state agency responsible for certifying compliance under § 401.
Id. This notice suspends any § 401 proceedings and tolls the
period of time within which the certifying agency must act on a certi-
fication request. Id. at § 122.7.
3
Id. § 122.5(b). The applicant may submit additional information
and data "as soon as practicable" after the initial 60-day period.
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A-2
it must include a description of them. Under the proposed
regulations the agency may include § 316(a) limitations in
the proposed permit only on the basis of information submitted by
the applicant which demonstrates that either (1) no appreciable
harm has resulted from past discharge, ° or (2) protection of
representative important species is assured. ' The "no appreciable
harm" demonstration would be available only for pre-existing
4Id. at § 122.6(a)(l) and (2).
Section 122.8(b) of the proposed regulations authorizes an
applicant to produce other relevant data to satisfy the
statutory requirements. But § 122.8, as presently proposed,
would preclude the NPDES administrator from proposing § 316(a)
limitations in the public notice even if he is satisfied that
the applicant's evidence, outside the two specific tests of
the regulations, meets the statutory test. A hearing would be
mandatory in all such cases.
6Id_. 11437-38, § 122,8(a) (1) . In determining whether appreciable
harm has occurred, the permitting agency is to consider evidence
of compliance with water quality standards designed to protect
fish and aquatic life. Id.
7Id. 11438, § 122.8(a)(2)(i).These representative species must
reflect the "biological needs" of a balanced, indgenous popula-
tion in the receiving water body. Id. § 122.9(b)(1)' (i). In de-
termining whether or not protection of the selected species will
be assured, the permitting agency must consider evidence of com-
pliance with temperature criteria established for growth, repro-
duction and survival of those species. Id. § 122.8(a)(2)(i).
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A-3
discharges.
The type of the thermal effluent limitations proposed by
the NPDES administrator in the public notice would determine
the type of administrative proceedings that follow. If § 316(a)
limitations were proposed in the notice any person might file
written comments with the agency and/or request a hearing to
consider them.^ Whether a hearing will be held and the type of
hearing, whether "legislative" or "adjudicatory," would be left
to the Administrator's discretion. If § 316(a) limitations were
not proposed in the notice, the applicant would have 30 days in
o
Id. 11437 § 122.8(a)(l). The Manual implies that this demonstra-
tion is available only to discharges which have existed at least
five years on waters which are not despoiled. Environmental Pro-
tection Agency, supra note 3 at 7, 18-19.
9
Id. § 122.6(b)(2). These procedures are established in 40 C.F.R.
§§~~125.32 and 125.34 (1974). The proposed provisions for hearings
are rather complex. Ariy person may request an adjudicatory hearing
pursuant to 40 C.F.R. § 125.34(c) within 30 days after the public
notice of the permit application, or if a nonadjudicatory hearing
is held, within 20 days after that hearing. Id. 11438, § 122.10(a)
(2). The hearing request may raise any issues concerning the per-
mit application and must include the issue of thermal effluent
limitations in the statement of issues proposed to be considered
at the hearing. Id. § 122.10(a)(3).
If a hearing is granted, all contested issues relating to
the proposed permit must be considered and resolved in a single
hearing unless, for some reason, consolidation and simultaneous
resolution is inappropriate. Id. 11438-39, § 122.10(a)(4). The
§ 316(a) issues may be severed^from the other issues and their
consideration deferred to a subsequent hearing if the permitting
agency finds that information sufficient for a knowledgeable deter-
mination is not available. Id. 11439, § 122.10(b)(1). In such a
case, the § 316(a) hearing is to be deferred until the owner or
operator has completed engineering and biological studies con-
sidered necessary by the permitting agency. Id.
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A-4
which to request an adjudicatory hearing at which it might
demonstrate that the proposed § 301 or § 306 thermal limita-
tions are more stringent than necessary to assure the protection
and propagation of a balanced, indigenous population.1^ At such
a hearing, the applicant would, at its election, submit evidence
directed towards showing (1) "no appreciable harm" or (2) pro-
tection of "representative important species" or (3) any other
new or historical biological data, physical monitoring data,
engineering models, or other relevant evidence. -
The proposed regulations authorize § 316(a) limitations
to be included in the final permit if (1) they were included in
the proposed permit based on either a "no appreciable harm" or a
"representative important species" demonstration and (2) if no
adverse information is received during the public comment or
•I O
hearings, or if received is insubstantial or rebutted. . Fur-
ther, § 316(a) limitations could be included in the final permit
even if not proposed in the public notice, if the applicant's
10
Id. § 122.6(b)(l); see also note 9 supra.
11Id. 11438, § 122.8(b).
12
Id. §§ 122.9(a),(b). Section 316(a) limitations included in the
puBTic notice of the permit based on a "no appreciable harm"
demonstration may be included in the final permit unless (1) infor-
mation received indicates that the thermal discharge has caused
appreciable harm or disturbed the balanced, indigenous population,
and (2) the applicant does not establish that despite this "harm"
or "disturbance" the § 316(a) limitations will assure protection
and propagation. Id. § 122.9(a)(1),(2). If § 316(a) limitations
included in the notice of permit application are based on a "repre-
sentative important species" demonstration, they may be imposed in
the permit unless unrebutted information indicates inappropriate-
ness of the species selected, inadequacy of the temperature criteria
employed or excessive size of the allowed mixing zone. Id. § 122.9
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A-5
evidence ultimately establishes that they are stringent enough
to assure protection of the balanced, indigenous population and
that thermal limitations otherwise applicable under §§ 301 or
1 o
306 are more stringent than necessary to assure such protection. J
The proposed regulations recognize that sufficient § 316(a)
information may not be available prior to resolution of other
issues relating to the permit. If information sufficient for a
§ 316(a) determination is not available, the § 316(a) issues may
be severed from the other issues and their consideration deferred
until completion of necessary engineering and biological studies.
In that event, the permitting agency would issue a discharge permit
which requires the achievement of non-§ 316(a) limitations no later
than the date specified for the relevant category of plant in
guidelines issued pursuant to §§ 304(b) or 306 of the Act.15 This
permit would also afford the applicant an opportunity to request
13Id. 11439, § 122.10(a)(6), (7).
14Id. §
^-*Id. In addition, the permit must contain a schedule of compliance,
whTch includes a construction schedule for installation of off-stream
cooling facilities. 40 C.F.R. § 125.23(a), (b) (1973).
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A-6
a subsequent hearing after completion of the biological and
engineering studies. But, under the proposed regulations,
any such hearing would have to be held sufficiently in advance
of the §§ 304(b) or 306 compliance date so that the applicant
could reasonably be expected to achieve the non-§ 316(a)
limitations by that date if it were unsuccessful in the § 3l6(a)
hearing.
16id.
17ld. § 122.10(b)(3).
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A. Annotated Mark-Up of Proposed Section 316(a)
Regulations
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ATTACHMENT A
ANNOTATED
MARK-UP OF PROPOSED
SECTION 316(a) REGULATIONS
This attachment includes, first, an explanation of
the demonstration types proposed in our recommended § 316(a)
regulations and, second, a mark-up of EfA1s proposed regu-
lations with accompanying explanatory comment.
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I. Explanation of UWAG's Proposed
§ 316(a) Demonstration Types
UWAG's suggested revision of EPA1s proposed 40 C.F.R.
Part 122 contains six alternative ways to demonstrate that
a less stringent thermal effluent limitation will assure the
protection and propagation of a balanced, indigenous population
of shellfish, fish and wildlife in and on the body of water into
which the discharge is made. The following explanation, analogous
to a preamble or statement of consideration, is intended for
publication with the regulations at the time they are promulgated.
Its purpose is to provide guidance for administering § 316(a)
and implementing each of the six demonstration types.
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-3-
GUIDANCE FOR IMPLEMENTING THE REQUIREMENTS
OF 40 C.F.R. § 122.8(a)(l) THROUGH (6)
The following explanation is to be used as guidance in
administering the requirements of 40 C.F.R. § 122.8(a)(l)
through (6).
§ 122.8(a)(l) Demonstration of Lack of Appreciable Harm
This means of making a § 316(a) demonstration is available
to any existing source which has been in operation for a sufficient
period to gather reliable data on the effects of the discharge.
After determining that a source has been operating for a
sufficient period to permit gathering reliable data, the second
step is to determine whether or not the population of shellfish,
fish and wildlife in and on the water body into which the dis-
charge is made has been altered in any material sense as a re-
sult of point source discharges. If it is found that discharges
of chemical and sanitary wastes have so polluted the quality of
the water that the effects of the thermal discharge cannot be
determined, Part 122.8(a)(l) may not be utilized. Assuming that
the waters have not been despoiled by such wastes but that the
population has been altered to the extent that fish and other
biota normally associated with warmer water are dominant, it
will then be necessary to demonstrate that the resulting popu-
lation is socially valuable. This may be accomplished by pre-
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-4-
senting evidence that the existing population mix (a) accords
with a recognized program of wildlife management, or (b) is
commercially or recreatianally valuable, or (c) is consistent
with the purposes for which the water body was created or
developed or (d) is consistent with irreversible environmental
modifications which have already occurred. In the event it
is determined that the population is socially valuable it may
then be shown that as to that population no appreciable harm
has occurred. If it is found that the population is not
socially valuable, Part 122.8(a)(l) may not be utilized.
In order to facilitate the use of the lack of appreciable
harm test it is intended that Regional Administrators and State
Directors will enter into stipulations with applicants relative
to the threshold issues discussed above. Such stipulations,
are, of course, subject to challenge by third parties in any
hearing held in conjunction with a determination under § 316(a).
Assuming that the source for which a permit is sought is
eligible to proceed under this section, the next step is to
determine whether it is necessary to show that no appreciable
harm has occurred to all important species in and on the body
of water or whether it is sufficient simply to show that no
appreciable harm has occurred to important representative species,
In order to reduce the administrative burden, representative
species will be selected wherever feasible and evidence of
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-5-
lack of harm restricted to those species. As in the case
of other threshold decisions, it is expected that the Regional
Administrator or State Director will enter into binding stipu-
lations regarding representative species.
The final step under the lack of harm approach is to
demonstrate that no appreciable harm hr.s occurred to the species
to be protected. This may be accomplished through presenting
any relevant, reliable, probative evidence available to the
applicant. Among other things:
1. The applicant may present pre- and post-operational
data collected from the body of water into which the discharge
is made showing that the population of species important to his
case have not changed in any material sense.
2. The applicant may present data showing that the species
important to his case are present in the body of water in the
same numbers as would be expected under natural conditions.
3. The applicant may present evidence on the thermal
tolerances of the species important to his case and their
relationship to the temperatures in question.
4. The applicant may present evidence relative to the
effects of the temperatures in question on the reproduction,
growth, feeding, and metabolism of the species important to his
case.
5. The applicant may present evidence on the effects
of similar discharges, on similar bodies of water, with similar
biota, on the species important to his case.
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-6-
6. The applicant may present data which shows that
the area affected by the thermal discharge is too small to
have had any appreciable impact on the water body or that
the thermally affected area could not, under natural con-
ditions, constitute a biologically significant area.
§ 122.8(a)(2) Demonstration of Compliance With Approved
State Water Quality Standards.
This means of making a § 316(a) demonstration is available
for both new and existing sources. Since state water quality
standards approved subsequent to passage of the FWPCA Amend-
ments of 1972 and designed for fish and aquatic life uses are
consistent with § 316(a), the relevant consideration under this
section is whether compliance with water quality standards is
assured. Where the specific methods for demonstrating com-
pliance with approved water quality standards set out in
§ 122.8(a)(2) are inappropriate (or otherwise unavailable), the
Regional Administrator or State Director must make the initial
determination of compliance. Where compliance with approved water
quality standards for fish and aquatic life uses is dependent
upon certain modes of operation or where the determination is
based upon a prediction of ability to comply with such standards,
appropriate conditions may be inserted in the permit.
In demonstrating compliance with approved water quality
standards for fish and aquatic life the applicant may present
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-7-
any relevant, reliable, probative evidence available to him.
Among other things:
1. The applicant may, for existing plants (a) present
scale drawings showing typical surface isotherms at specific
temperature increases (such as, 3°C, 5°C, etc.); (b) specify
the definition of ambient temperature used in the study which,
when subtracted from the absolute measured temperatures, yields
the above temperature increases; (c) discuss the implications
of seasonal variations and extreme hydrological conditions; and
(d) present scale drawings showing the above isotherms in the
vertical water column along two transects of the plume.
2. The applicant may, for new plants, present scale
drawings showing the predicted surface and subsurface isotherms
obtained using physical or mathematical models, showing only
the incremental plant-induced temperature increases.
3. The applicant may present a program for plant operation
which, with proposed modifications or installed equipment, will
assure compliance with approved water quality standards.
§ 122.8(a)(3) Demonstration of Protection of a Balanced.
Indigenous Population Through Predictive"
Techniques.
This means of making a § 316(a) demonstration is designed
for use in situations in which it is necessary to predict the
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-8-
irapact of (1) future discharges on existing populations or
(2) future or existing discharges on future populations. It
may be used for (1) new sources, (2) existing sources which
have not been operating long enough to qualify under the lack
•sV
of appreciable harm test, and (3) existing sources for which
the lack of harm test is not available because the water body
has been polluted by discharges of chemical and sanitary wastes.
For new plants, there are at least two threshold issues.
The first is whether the population in and on the water body
has been materially altered as a result of discharges of chemical
and sanitary wastes. The second is whether it has been altered
by existing thermal discharges (or will be altered by the new
discharge) so that fish and other biota normally associated with
warmer water are, or will become, dominant.
. For these new sources discharging into waters whose popu-
lations have not been altered by chemical and sanitary wastes,
the existing population is the population whose protection must
be satisfactorily predicted unless it is determined that existing
discharges or the proposed discharge have changed or will change
the predominant aquatic biota to that normally associated with
warmer water.
/v
For all practical purposes such sources will be treated as
new sources, although some data collected after operations
have begun may be submitted to verify predictive data.
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-9-
If the new or existing source is on a water body whose
population has been materially altered as a result of dis-
charges of chemical and sanitary wastes, the next step is to
predict the population of shellfish, fish and wildlife which
could reasonably be expected to exist during the term o_f the
permit in question if all point sources discharging chemical
and sanitary wastes into that body of water complied with the
applicable requirements of § 301(b) of the Act. This will then
become the population whose protection must be satisfactorily
predicted, except as described below.
In those instances in which it is found that a proposed
or existing discharge has or will alter the population which
would otherwise be present* to the extent that biota normally
associated with warmer water will dominate, it will be necessary
to demonstrate that the resulting population is socially valuable.
This may be accomplished by presenting evidence that the resulting
population (a) accords with a recognized program of wildlife
management, (b) is commercially or recreationally valuable, (c)
is consistent with the purpose for which the water body was created
or developed, or (d) is consistent with irreversible environ-
mental modifications which have already occurred. In the event
it is determined that the population is socially valuable, it
shall be the population whose protection must be satisfactorily
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-10-
predicted. If it is found that the population is not socially
valuable, the population whose protection must be satisfactorily
predicted is that which would exist but for the discharge
responsible for establishment of warm water biota.
After identifying the population to be protected under
these various sets of circumstances, the next step is to
determine whether it is necessary to satisfactorily predict that
all important species will be protected or whether it is
sufficient to show only that important representative species
will be protected. In order to reduce the administrative
burden, representative species will be selected wherever feasible
and evidence restricted to predicting that those species will be
protected.
It is expected that Regional Administrators and State
Directors will, wherever possible, enter into stipulations
relative to the preliminary determinations associated with
identifying the specific species whose protection must be suc-
cessfully predicted. Such stipulations are, of course, subject
to challenge by third parties in any hearing held in conjunction
with a determination under § 316(a).
The final step under the predictive approach is to demon-
strate by predictive means that the species selected as important
to such a demonstration will be protected. This may be accomplished
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-11-
through presenting any relevant, reliable, probative evidence
available to the applicant. Among other things:
1. The applicant may present the results of predictive
modeling of the effects of the thermal discharge on the species
important to his case. This may include results of engineering,
hydrologic, or mathematical modeling studies and evidence of
the effects of the predicted temperatures in question on the
reproduction, growth, feeding, and metabolism of the species
important to his case.
2. The applicant may present evidence on the thermal
tolerances of the species important to his case and their
relationship to the temperatures in question.
3. The applicant may present evidence of the effects of
similar discharges, on similar bodies of water, with similar
biota, on the species important to his case.
4. The applicant may present data which shows that the
area to be affected by the thermal discharge is too small to
have any appreciable impact on the water body, or that the
thermally affected area would not, under natural conditions,
constitute a biologically significant area.
§ 122.8(a)(4) Demonstration of Low Potential Thermal Impact
It is recognized that certain plants are located on such
large water bodies or on water bodies with flows so large
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-12-
that the thermal discharge cannot possibly impact the
aquatic population in any material way. Accordingly, it
would be wasteful of finite human and other resources, including
those of Regional Administrators and State Directors, to engage
in detailed studies or to require protracted hearings to prove
the obvious. Thus the low potential thermal impact approach
is intended for use by new and existing plants on those
water bodies where, for all practical purposes, it is possible
to make generic 316(a) determinations. The primary focus of
the low impact discharge approach is on the water body and
its dissipative capacity. Because of this it would be
appropriate for Regional Administrators and State Directors
to specify certain waters within their jurisdiction into which,
under normal circumstance, discharges of heat will not impact
the indigenous population. The discharger and Administrator
(or State Director) would then have to look only at the
specific thermal data (either historical or predictive) and
the specific discharge area to verify that there is nothing
about the discharge which tends to negate the presumption that
harm has not and will not be caused by the discharge.
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-13-
It would, oC course, be appropriate to require a reasonable
degree of monitoring during the term of the permit to verify
the conclusion that the discharge has no material impact.
The threshold issue under this approach is a determina-
tion that the area, configuration, volume, flow, temperatures
and general physical conditions cannot impact a large enough
area relative to the water body as a whole to have a measurable
effect. The applicant would then submit site-specific data
which would indicate that there is nothing to the presumption
that there is or will be no appreciable impact on the aquatic
population. Among other things:
1. The applicant may present evidence indicating that
the size of the thermal plume is very small as compared to
the water body.
It is expected that the Regional Administrator or State Director
would enter into stipulations as to which waters in his juris-
diction meet the low potential impact criteria. The classification
of basin segments pursuant to 40 C.F.R. 130.11, 39 Fed. Reg. 19636
(1974) and calculation of thermal loads pursuant to 40 C.F.R. 131.304,
39 Fed. Reg. 19641 (1974), should assist in identification of low-
potential impact waters. The stipulation would, of course, be
subject to challenge by third parties in any hearing held to
consider the discharge.
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-14-
2. The applicant may present evidence showing that
adquate zones of passage are available for migratory species.
3. The applicant may present evidence which shows
that no biologically unique or important shoreline or other
areas are impacted by the thermal discharge.
4. The applicant may present evidence of detailed
studies on similar low potential impact water bodies which
confirm the fact that discharges to such waters do not
adversely impact aquatic biota.
§ 122.8(a)(5) Demonstration of Lack of Irreparable Harm
This means of making a § 316(a) demonstration may only
be used in conjunction with initial NPDES permits. It may be
utilized for both new and existing plants. All permits issued
pursuant to this section will be for terms not to exceed the
number of months reasonably necessary to gather field data or
conduct studies required to make a fair § 316(a) determination
pursuant to one of the other methods described herein. Generally,
such permits will be for terms of one to three years.
It must be assumed that Congress both meant for § 316(a)
to work and that was aware of the fact that extensive data
would not be immediately available. Accordingly, it must have
been their intent for initial determinations under § 316(a) to
be based on extant data. This is the key to understanding the
lack of irreparable harm approach. It is designed to permit
establishing alternative limitations on the basis of data which
is readily available or can be obtained quickly. This will
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-15-
permit a plant to continue operation without ultimate risk
to the indigenous population while more extensive data is
gathered for a 5-year permit.
The cornerstone of the lack of irreparable harm approach
is a finding that during the initial permit the aquatic
population will sustain any marked change which would affect
its recovery if off-stream cooling were later required.
If a source has been discharging for 5 or 10 years,for example,
it is unlikely that any effects over the term of a 2- to
3-year permit would further impact the aquatic population
beyond the term of the permit. For new sources, the finding
would center on determining whether discharge for the term
of the permit would significantly impact the indigenous
population beyond the term of the permit. On waters already
polluted by discharges of chemical and sanitary wastes it is
unlikely that thermol discharges will result in any material
change that would slow the ultimate recovery of the aquatic
population.
The second major basis of the irreparable harm test is
a demonstration that prior to expiration of the permit the
applicant will have necessary the data for a valid deter-
mination pursuant to one of the other approaches to § 316(a)
demonstrations. Further, the applicant must show some reason-
able likelihood that the requisite demonstration can sucess-
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-16-
fully be made by the end of the initial permit term.
It is expected that Regional Administrators and Directors
will grant permits under this section in most cases where
requested to do so.
Applicants may submit any relevant, probative, reliable
evidence available to them to establish both that no irreparable
harm will occur during the term of the permit and that there is
reasonable probability of making a second successful demonstra-
tion prior to the termination of the initial permit. Among
other things:
(1) The applicant may present evidence showing that no
[furtiher] measurable biological changes are likely to occur
over the term of the permit.
(2) The applicant may show that the likelihood of any
measurable change occurring is minimal and that any change
which could be associated with a new discharge would not be
irreversible.
(3) The applicant may present evidence on the effects
of similar discharges on similar bodies of water to show that
there is little likelihood of appreciable harm occurring over
the life of the permit.
(4) The applicant may present any evidence
in support of a § 316(a) demonstration pursuant to any
of the other methods discussed herein in order to support a
finding that there is reasonable probability of making a sub-
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-17-
sequent § 316(a) determination prior to the termination of
the permit.
(5) The applicant may present a plan and schedule for
gathering biological and other data to show that necessary
data for a renewal permit will be available in a timely manner.
§ 122.8(a)(6) Demonstration by Any Other Means of Protection
of a Balanced, Indigenous Population
It is not intended that the methods for demonstrating
that a less stringent thermal effluent standard will assure
the protection and propagation of a balanced, indigenous
population be confined to the five district approaches described
in section 122.8(a)(1)-(5). A § 316(a) demonstration may be
made by any other relevant, reliable, probative and substantial
evidence, adduced by the applicant.
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II. Annotated
Mark-Up of Proposed
Section 316(a) Regulations
This mark-up indicates recommended changes in the
proposed § 316(a) regulations; accompanying comments
explain their rationale. Where the rationale for a
particular change is stated in the Utility Water Act
Group Comments, the reader is referred to the relevant
portion of the Comments. No rationale is offered for
self-explanatory changes (e.g., definition of "certifying
agency" in § 122.1 and conforming changes in § 122.7).
The form adopted for indicating changes is that pre-
scribed by subsection (4) of Rule XXXIX of the Standing
Rules of the Senate. Recommended deletions are enclosed
in brackets (e.g., [State or interstate]). Recommended
insertions are underscored (e.g., establishment).
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PART 122 - THERMAL DISCHARGES
SUBPART A - GENERAL
Sec.
122.1 Definitions
122.2 Scope and Purpose
122.3 Law Authorizing Alternative Effluent Limitations
122.4 Delegation of Authority
SUBPART B - EPA DETERMINATION
OF ALTERNATIVE EFFLUENT LIMITATIONS
122.5 Application for Determination Under Section 316(a)
122.6 Public Notice
122.7 State Certification
122.8 Proposal of Alternative Effluent Limitations
122.9 Determination of Alternative Effluent Limitations
122.10 Public Hearings
SUBPART C - STATE DETERMINATION
OF ALTERNATIVE EFFLUENT LIMITATIONS
122.11 Application for Determination Under Section 316(a)
122.12 Public Notice
122.13 Proposal of Alternative Effluent Limitations
\
122.14 Determination of Alternative Effluent Limitations
{\'
122.15 Public Hearings
122.16 Transmission to Regional Administrator of Proposed Effluent
Limitations
122.17 Transmission to Regional Administrator of Issued Effluent
Limitations .
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SUBPART A - GENERAL
§ 122.1 Definitions
Except as otherwise specifically provided:
(a) The term "Act" means the Federal Water Pollution
Control Act, as amended, 33 U.S.C. 1251, et seq.
(b) The term "Administrator" means the Administrator
of the U.S. Environmental Protection Agency.
(c) The term "alternative effluent limitations" means
effluent limitations or standards of performance for the con-
trol of the thermal component of any discharge which are [imposed]
established pursuant to section 316(a) of the Act and these regula-
tions and imposed under section 301 or 306 in lieu of effluent
limitations or standards of performance otherwise applicable
under sectionfs] 301 or 306 of the Act.
Comment
Section 316(a) authorizes the Administrator to "impose
an [alternative] effluent limitation under such sections . . .
that will assure the protection and propagation . . . ." The
phrase "under such sections" is clearly a reference to ""section
301 or section 306 of this Act. . . ." Thus, effluent limitations
established pursuant § 316(a) must be imposed under § 301 or
§ 306 in lieu of effluent limitations or standards applicable
under such sections. The statute contemplates, and the final
regulations should provide, that § 316(a) thermal limitations,
once established, become the applicable requirements under
§ 301 or § 306 and supplant any other more stringent requirements
under those sections for the control of thermal discharges.
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(d) The term "Director" means the chief administrative
officer of a State water pollution control agency or interstate
agency. In the event responsibility for water pollution con-
trol and enforcement is divided among two or more State or inter-
state agencies, the term "Director" means the administrative
officer authorized to perform the particular procedure to which
reference is made.
(e) The term "Environmental Protection Agency" means
the U. S. Environmental Protection Agency.
(f) The term "Regional Administrator" means one of
the Regional Administrators of the Environmental Protection Agency.
(g) The term "certifying agency" means a State or inter-
state agency empowered to issue certifications under section 401
of the Act.
[(g)](h) The term "Representative, important species"
means one or more important species [which] whose thermal responses
are generally representative[, in terms of biological needs,
of a] of the thermal responses of other important species com-
prising the balanced, indigenous population of shellfish, fish
and wildlife in the body of water into which discharge of heat
is made. Important species include those which are (1) of recrea-
tional or commercial significance, (2) necessary food chain elements
for such significant species, or (3) xare and endangered species.
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Comment
1. Biological Needs
Nonrepresentative "biological needs" may be irrelevant
to the issue under § 316(a), which concerns the effect of
thermal discharges. The question should be whether the thermal
responses of the selected species are fairly representative of
those of other important species comprising the balanced,
indigenous population in the body of water into which the
discharge is made. The regulations should be clarified to
achieve this result.
2. Important Species
The proposed regulations offered no criteria to determine
whether representative species were also important species.
The criteria we recommend are drawn from the explication in
the Draft Manual. Two of the Manual's criteria, however, should
be rejected. First,"[o]ther characteristics causing the species
to be important as a reflection of the existance of a balanced,
indigenous population" are encompassed in the determination
of whether the .species are representative.
Second, identification of the "most temperature-
sensitive species in the local area" would in most cases be a
time-consuming and fruitless exercise; in others it would be
impossible. What is the "most temperature-sensitive" species
under one set of conditions will prove more tolerant than others
under different conditions. Which species proves to be the
"most temperature-sensitive" in a laboratory study will depend
on the other physical and chemical characteristics of the water
which is used. Even if those other characteristics approximate
those observed at the site, ambient water characteristics and
conditions do not remain constant. Finally, even if one were
successful in identifying this species, it may warrant no
special consideration. The fact of its temperature sensitivity
•may indicate that the species is observed at or beyond its extreme
southern range. Under such circumstances the species should be
considered neither representative nor important.
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[(h)](i) The term "balanced, indigenous population"
refers, except in the case of man-made impoundments^ to [a] the
population which can reasonably be expected to exist in the
pertinent water body upon attainment of existing water quality
standards; or, if water quality standards will not be attained
during the term of the permit in question, to the aquatic com-
munity which can reasonably be expected to exist in the water
body during such term [typically characterized by diversity at
all trophic levels, the capacity to sustain itself through
cyclic seasonal changes, presence of necessary food chain
species and non-domination of pollution-tolerant species]. The
term "balanced, indigenous population" refers, in the case of
man-made impoundments, to the population which can reasonably
be expected to exist in the pertinent water body upon attain-
ment of existing water quality standards other than heat.
[Such a] The population may include historically non-native
species successfully introduced in connection with a program
of wildlife management and species whose presence or abundance
results from substantial, irreversible environmental modifica-
tion. Similarly, the absence of historically native species
does not necessarily mean that the remaining population is
not a "balanced, indigenous population." Normally, however,
such a population will not [include] be dominated by species
which are not valuable or desirable for recreational or com-
mercial purposes and whose [presence or abundance] dominance
[is attributable to the introduction] has resulted from dis-
charges of pollutants or, in the case of a man-made impoundment,
of pollutants other than heat.
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Coinment
1. Balanced Indigenous Population
The rationale for the definition is stated in detail
at pages 32 to 43 of the Utility Water Act Group Comments on
the proposed § 316(a) regulations. Simply stated, we believe that the
phrase was intended to have, and should be given, a practical
interpretation which will serve as a guide in real-world decisions.
Section 316 requests should be denied only where continuation of
the thermal discharge during the term of the discharge permit
would preclude the existence of a viable, beneficial aquatic
population during that period.
Existing water quality standards, we believe, provide a
realistic and yet conservatively protective measure of the
aquatic population which can be anticipated during a permit
term of five years or less. Section 316(a) applicants for
discharges into natural water bodies designated for fish and
aquatic life uses should normally be required to demonstrate
reasonable maintenance of a normal complement of beneficial
aquatic biota indigenous to the region. However, variation
in species composition which may have been occassioned by the
addition of artificial heat does not disqualify the resulting
population from being the object of § 316(a)'s "protection
and propagation" test. If the resulting aquatic population
is beneficial for recreational or commercial uses, it is the
relevant population under § 316(a).
2. Man-made Water Bodies
The distinction between natural and man-made water bodies
is based on the recognition that the latter are themselves
"substantial, irreversible environmental modifications." Further,
we believe that socially acceptable reasons which led initially
to the physical alterations should be considered in determining
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the population to be protected under § 316(a). Many man-made
lakes and ponds were created for their use and value in generating
electricity. Neither the lake nor its resident aquatic popula-
tion would exist but for that use. Many of these impoundments
afford significant recreational opportunities as an incident
to their use for cooling water sources. In such cases, we
believe that the nature of the aquatic population which may have
inhabited the new impounded stream provides no useful guide
in determining the population to be protected. Rather, the
inquiry should be toward that aquatic population whose "pres-
ence or abundance" has resulted from the man-made modification.
If that population is beneficial, assuring its viability should
be sufficient for purposes of § 316(a).
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[(i)](j) The term "water quality standards" means
applicable water quality standards which have been (1) ap-
proved or permitted to remain in effect by the Administrator
pursuant to sections 303(a) or 303 (c) of the Act, or (2)
promulgated or proposed for promulgation by the Administrator
pursuant to sections 303 (b) or, 303 (c) of the Act, as of the
date any notice is issued pursuant to section 122.6 (a) or
122.12 (a) of this part.
(k) The term "thermal mixing zone" means that
area or volume of direct thermal influence which is so
delimited that (1) its area or volume is not so large in re-
lation to the area or volume (cross-sectional or flow)
of the pertinent receiving water body segment that
it is inconsistent with the existence of a viable, beneficial
aquatic population in and on the receiving water body segment,
and (2) its location and configuration do not significantly
impact biologically sensitive zones to a degree which is
damaging to the ecosystem of the receiving water body segment
or constitute a permanent blockage to the necessary passage
of important fish species.
(1) The term "water body segment" means a
portion of a basin the surface waters of which have common
hydrologic characteristics (or flow regulation patterns);
common natural physical, chemical, and biological processes,
and which have common reactions to external stress, e.g., dis-
charge of pollutants. (See 40 C.F.R. § 130.2(m).) Where
they have been defined, the water body segments determined by
the State Continuing Planning Process under section 303(e) of
the Act will apply.
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[(j)](m) The term "section 316(a)" shall mean
section 316 (a) of the Act.
[(k)](n) The definitions of the following terms
contained in section 502 of the Act shall be applicable to
such terms as used in this part unless the context other-
wise requires: "State water pollution control agency,"
"interstate agency," "State," "person," "pollutant,"
"navigable waters," "territorial seas," "contiguous zone,"
"ocean," "effluent limitations," "discharge of a pollutant,"
"point source," "discharge," and "pollution."
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§ 122.2 Scope and Purpose
(a) The regulations in this part prescribe the proce-
dures to be followed in connection with the [imposition] estab-
lishment of alternative effluent limitations, pursuant to sec-
tion 316(a), and the imposition thereof, pursuant to section 301
or 306, upon the thermal component of discharges from point sources
in lieu of requirements otherwise [subject to] applicable under
section[s] 301 [and] or 306 of the Act.
(b) The regulations in this part prescribe the proce-
dures for the establishment and imposition of such alternative
effluent limitations in conjunction with applications both for
permits which are issued by the Administrator pursuant to sec-
tion 402(a) of the Act and for permits which are issued by the
Director of a State water pollution control agency or interstate
agency which is authorized to issue permits pursuant to a pro-
gram approved by the Administrator under section 402 of the Act
and Part 124 of this chapter.
Comment
In conformance with the recommended change in § 122.l(c),
this change would make clear that alternative effluent limita-
tions established pursuant to § 316(a) are imposed under
§§ 301 or 306 in lieu of requirements otherwise applicable
under those sections.
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§ 122.3 Law Authorizing Alternative Effluent Limitations
(a) Section 316(a) provides that:
"With respect to any point source otherwise sub-
ject to the provisions of section 301 or section
306 of this Act, whenever the owner or operator
of any such source, after opportunity for public
hearing, can demonstrate to the satisfaction of
the Administrator (or, if appropriate, the State)
that any effluent limitation proposed for the con-
trol of the thermal component of any discharge
from such source will require effluent limitations
more stringent than necessary to assure the pro-
tection and propagation of a balanced, indigenous
population of shellfish/ fish, and wildlife in
and on the body of water into which the discharge
is to be made, the Administrator (or, if appro-
priate, the State) may impose an effluent limita-
tion under such sections for such plant, with re-
spect to the thermal component of such discharge
(taking into account the interaction of such thermal
component with other pollutants), that will assure
the protection and propagation of a balanced indig-
enous population of shellfish, fish, and wildlife
in and on that body of water."
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§ 122,4 Delegation of Authority
(a) Subject to the appeal provisions of section 125.34
of this chapter and the national security responsibility provi-
sions of section 125.34(c) of this chapter/ the Regional Admin-
istrator is hereby delegated the authority, for the area which
he administers, to establish and impose alternative effluent
limitations to control the thermal component of discharges in
accordance with the provisions of section 316(a) and these regu-
lations .
(b) This authority may be redelegated to the Director,
Enforcement Division, of each region.
Comment
Conforming change. See §§ 122.l(c), 122.2.
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SUBPART B
EPA DETERMINATION OF ALTERNATIVE EFFLUENT LIMITATIONS
§ 122.5 Application for Determination under Section 316(a)
(a)(1) The owner or operator of any point source who
desires the Regional Administrator to [impose] establish alterna-
tive effluent limitations pursuant to section 316(a) shall so
notify the Regional Administrator and the appropriate [State
or interstate] certifying agency [empowered to issue section
401 certifications] in writing prior to or upon the filing of
an application for a permit pursuant to section 125.12 of this
chapter.
(2) Notice pursuant to paragraph (a)(1) of this
section shall, in the case of any point source for which a dis-
charge permit application has been filed prior to the publica-
tion of these proposed regulations, be given not later than 60
days after promulgation of these regulations or 60 days after
i
promulgation of effluent limitation[s] guidelines under section
304 or standards of performance under section 306 applicable
to that point source, whichever is later.
(b) The owner or operator shall submit to the Regional
Administrator within 60 days thereafter such data and other informa-
tion as are available to it and, as soon as practicable there-
after, such other data as it wishes to be considered in support
of its application for alternative 'effluent limitations.
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Comment
1. Establish
Conforming change.
2. Certifying Agency
Conforming Change.
3. Time of Filing
The recommended change would provide applicants with addi-
tional flexibility, particularly for new sources, to initiate
§ 316(a) consideration prior to actual filing of a discharge per-
mit application. The § 316(a) determination may prove to be the
most time-consuming aspect of § 402 permit proceedings; yet a
§ 316(a) determination may have a significant impact on siting
decisions. Further, the additional flexibility is needed for
directing evidence to representative important species, where
appropriate, since the applicant cannot provide relevant data
until after the species are selected.
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(c) As soon as practicable after the notice
required by subsection (a) of this section the owner or
operator may propose stipulations with respect to identifi-
cation of the population whose protection must be assured,
selection of representative, important species/ or classifi-
cation of the discharge as a low potential impact discharge
for the purpose of a demonstration pursuant to section
122.8 of this Part. The Regional Administrator may agree to
such stipulations as are consistent with the purposes of
section 316 (a) of the Act. Any such stipulation reached
pursuant to this subsection shall be subject to challenge
by any person other than the applicant or Regional Administra-
tor at a hearing held pursuant to section 122.10(a)(2) of this
Part.
Comment
This provision would encourage early agreement to resolve
threshold issues determinative of the type of demonstrations
for which the discharge is eligible. Stipulations will also
reduce the applicant's burden in preparing and submitting data
and the Agency's burden in sorting and analyzing the data sub-
mitted. Maximum agreement to narrow and focus the issues would
greatly facilitate and expedite administration of § 316(a).
Since the stipulations will be subject to challenge by third
parties in any hearing held pursuant to § 122.10(a)(2), the
public would not be foreclosed from meaningful participation.
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§ 122.6 Public Notice
(a) In addition to the information required by sec-
tion 125.32(c) of this chapter/ the public notice of any appli-
cation for a permit for a discharge which is subject, pursuant
to sections 301 or 306 of the Act, to effluent limitations con-
trolling its thermal component and for which an application has
been filed pursuant to section 122.5 of this part shall include:
(1) A statement that the thermal component of
the discharge is subject to effluent limitations pursuant to
sections 301 or 306 of the Act and a brief description (which
shall include a quantitative statement) of the thermal efflu-
ent limitations proposed pursuant to sections 301 or 306; and
(2) A statement that such an application has been
filed and that alternative (and less stringent) effluent limita-
tions may be imposed on the thermal component of the discharge
pursuant to section 316(a), and a brief description (which shall
include a quantitative statement) of the proposed alternative
effluent limitations, if any.
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(b)(1) If no proposed alternative effluent limitations
are described in the public notice of the application, it shall
include, in addition to the statements required by paragraph
(a) of this section, a statement that the applicant is entitled,
at any time within 30 days of the issuance of the public notice,
to request a hearing pursuant to section 125.34(c) of this chap-
ter in order to demonstrate, pursuant to section 316(a) and these
regulations, that the proposed effluent limitations are more
stringent than necessary to assure the protection and propaga-
tion of a balanced, indigenous population of shellfish, fish
and wildlife in and on the body of water into which the discharge
is to be made.
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(2) If proposed alternative effluent limitations
are described in the public notice of the permit application
(in addition to the limitations otherwise applicable pursuant
to sections 301 or 306 of the Act), the notice shall include,
in addition to the statements required by paragraph (a) of this
section, a statement that the applicant has submitted evidence
in support of its request for alternative effluent limitations
which warrants further consideration and that the Regional Admin-
istrator is considering imposition of such alternative limita-
tions . The notice shall state that all data submitted by the
applicant, as well as a summary thereof, are available at the
office of the Regional Administrator for public inspection during
office hours. The notice shall also state that any person may
comment in writing upon these proposed alternative effluent limita-
tions in accordance with the provisions of section 125.32(c)(6)
of this chapter and may request a hearing pursuant to section
125.34 of this chapter.
(c) The public notice of any hearing held pursuant
to section 122.10(a) of this part shall include the information
required by section 125.32(d) of this chapter.
Comment
Conforming change. Section 316(a) effluent limitations
are also applicable under §§ 301 or 306 of the Act.
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(d) Nothing in this section shall be construed
to relieve the applicant of the burden of demonstrating to
the satisfaction of the Regional Administrator, after
opportunity -for public hearing afforded by section 122.10
of this part, that the thermal effluent limitations proposed
pursuant to sections 301 or 306 of the Act are more stringent
than necessary to assure the protection and propagation of
a balanced, indigenous population of shellfish, fish and
wildlife. Such a demonstration may be made by demonstrating
that less stringent thermal effluent limitations are
sufficiently stringent to assure such protection and pro-
pagation.
Comment
This provision, as proposed, implied that a demonstration
that less stringent limitations are sufficiently stringent to
assure the protection and propagation of a balanced, indigenous
population is not simultaneously a demonstration that any more
stringent effluent limitations are more stringent than necessary.
The suggestion was that § 316 (a) applicants must do something
further affirmatively to demonstrate that effluent limitations
under §§ 301 or 306 are more stringent than necessary to assure
protection and propagation of a balanced, indigenous
population. While the language of § 316(a) on first glance
appears to require an affirmative demonstration that "any [ther-
mal] effluent limitation proposed . . . will require effluent
limitations more stringent than necessary," the legislative
history reveals congressional expection that such a showing could
and would be made by demonstrating the sufficiency of less
stringent limitations.
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•j
The Conference Report merely tracks the language of
§ 316(a) and is therefore of little assistance. However, every
explanation of the Conference Agreement by members of the Con-
ference indicates a common understanding and intent that exces-
sive stringency of non-§ 316(a) limitations could be established
by showing sufficient stringency of § 316(a) limitations. Thus,
Senator Muskie explained:
Under the conference agreement thermal pollutants
will be regulated [under non-§ 316(a) limitations]
unless an owner or operator of a point source can
prove that a modified thermal limitation can be applied
which will assure "population and propagation of a
balanced indigenous population of fish, shellfish
and wildlife." [sic]**
In the House, Mr. Clausen remarked in a similar vein:
These [§ 316(a)] limitations will apply whenever
the owner or operator can satisfy the appropriate
. . . agency that they will assure the protection
and propagation of balanced, indigenous population
of shellfish, fish, and wildlife . . . .***
Mr. Johnson expressed a similar understanding of the conference
agreement:
Under the agreement of the conferees, . . . section
316(a) authorizes the imposition of a less stringent
[thermal] limitation whenever it can be demonstrated
that such lesser limitation will protect shellfish,
fish and wildlife . . . .****
Nowhere in the remarks by the conferees is there any
indication that a separate affirmative demonstration of excessive
stringency is required. A demonstration that proposed § 316(a)
limitations are sufficiently stringent is necessarily a showing
*S. Rep. No. 1236, 92d Cong., 2d Sess. 137 (1972), 1 Legis. Hist. 320
**118 Cong. Rec. 16875 (daily ed. Oct. 4, 1972), 1 Legis. Hist. 175.
f
Id. 9129, 1 Legis. Hist. 263.
****Id. 9131, 1 Legis. Hist. 267; accord, id. 9120, 1 Legis. Hist.
237 (Remarks of Rep. Jones).
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that any more stringent limitation on thermal discharges is
excessively stringent. The proposed regulations, however, did
not recognize this proposition. We believe that it should
be clearly stated in the final regulations.
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§ 122.7 State Certification
(a) Notification pursuant to section 122.5(a) of this
part to [a state or interstate] the appropriate certifying agency
[empowered to issue section 401 certifications] shall be deemed
a withdrawal of any pending application for certification as
to the compliance of the thermal component of the discharge with
sections 301, 302, 306 and 307 of the Act. Such notification
shall, as to the thermal component of the discharge, toll the
running of the period of time within which the [state or inter-
state] certifying agency must act.
(b) When the Regional Administrator, (or the Admin-
istrator pursuant to section 125.34(p) of this chapter) has made
a final determination as to the effluent limitations to be im-
posed on the thermal component of the discharge, he shall with-
in 10 days thereafter notify the [State or interstate] certify-
ing agency in writing of that determination. Such notification
shall be deemed a resubmission of any application for certifi-
cation as to the thermal component of the discharge under sec-
tion 401 of the Act and the running of the period of time with-
in which the certifying agency must act shall resume upon re-
ceipt of such notification.
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Comment
1. Certifying Agency
Conforming change.
2. Running of Time
Clarifying change. In many cases this suspension mech-
anism may delay issuance of the § 402 permit, making the Decem-
ber 31, 1974 date unattainable. The Regional Administrator's
use of his authority to shorten the normal three-month period
for certification will be essential to the feasibility of this
mechanism. See 40 C.F.K. § 125.15 (1973). In addition, agreements
for joint federal-state public notice concerning requests for
§ 401 certification and applications for § 402 discharge permits
would be especially appropriate where a § 316 (a) determination
is involved. See 40 C.F.R. § 125.32(g) (1973).
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(c) If the Regional Administrator determines in
the case of a new source that additional information needed
for a knowledgeable section 316(a) determination necessitates
long-term studies, he shall notify the appropriate certifying agency
that, pending final action on the request for alternative effluent
limitations, there are no standards or limitations applicable to
the thermal component of the discharge under sections 301, 302,
306 and 307 of the Act. Upon receipt of such notification, the
certifying agency shall certify that there is no applicable
standard or limitation for the thermal component of the discharge
under sections 301, 302, 306 and 307 of the Act.
Comment
The rationale for this provision is explained at pages
53 to 54 of the Utility Water Act Group Comments.
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-43^
[(c)] (d) Any alternative effluent limitation established
pursuant to section 316(a) shall constitute the applicable thermal
provisions of sections 301, 302, 306 and 307 of the Act for pur-
poses of section 401 of the Act.
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§ 122.8 Proposal of Alternative Effluent Limitations
(a) The Regional Administrator [may] shall include in
the public notice of the permit application proposed alternative
effluent limitations on the thermal component of the discharge
if the owner or operator satisfies the requirements of [either]
any subparagraph [(a)(l) or (a)(2)] of subsection (a) of this
section.
Comment
The Regional Administrator has no discretion ultimately to
refuse to establish alternative effluent limitations if the ap-
plicant has presented substantial evidence that limitations
otherwise applicable are excessively stringent. Despite the
apparently discretionary cast of the statutory language, the
intent of Congress was that § 316(a) adjustments would be made
whenever the applicant made a satisfactory demonstration. E.g.,
1 Legis. Hist. 263. This intent and not use of the term "may"
in § 316(a) is determinative of the mandatory nature of the
Regional Administrator's duty under that section. See United
States ex rel. Siegel v. Thompson, 156 U.S. 353, 359 (1895);
cf. Portland Cement Ass'n v. Ruckelshaus. 486 F.2d 375, 380 n.13
(D.C. Cir. 1973), cert, denied, U.S. (1974). Further,
even if the Administrator's duty could be construed as a dis-
cretionary power, his refusal to establish § 316(a) effluent limi-
tations despite an adequate demonstration would be "arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance
with law" within the meaning of the Administrative Procedure Act,
5 U.S.C. § 706(2)(A). See Citizens to Preserve Overton Park,
Inc. v. Volpe, 401 U.S. 402 (1971); see also Wong Wing Hung v.
Immigration & Neutralization Service, 360 F.2d 715, 719 (2d
Cir. 1966).
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Since the ultimate establishment of § 316(a) limitations
after an adequate showing is mandatory, no purpose is served by
granting, by regulation, discretion to refuse to propose those
limitations in the public notice of the permit application. Yet,
use of that discretion, if granted, would impede administration
of § 316(a) by unfairly and unnecessarily requiring applicants
to endure an adjudicatory hearing. Under the proposed regulations,
unless alternative effluent limitations are included in the notice,
the applicant must make its demonstration at an adjudicatory
hearing. 39 Fed. Reg. 11438, § 122.8(b) (1974). If the applicant
has made an adequate initial demonstration pursuant to pro-
posed § 122.8(a), there is no justification for unnecessarily
subjecting it to the delay or expense occassioned by an
adjudicatory hearing. Moreover, encouragement of public
participation in the permit process demands that the public
be apprised when a satisfactory initial § 316(a) demonstration
has been made. Thus, the inclusion of alternative effluent
limitations in the notice under this subsection should be
made clearly mandatory.
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(1) Demonstration of Absence of Prior Harm
(i) In the case of a point source which has
commenced operation and discharge prior to the filing of the notice
•
required by section 122.5(a) of this Part, alternative effluent
limitations may be included in the public notice of the permit
application if the owner or operator has demonstrated, to the
satisfaction of the Regional Administrator, that no apprecia-
ble harm has resulted from the thermal 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 the [species] population of shellfish, fish and wild-
life in and on the water body segment [of water] into which the
discharge has been made, and therefore that the thermal component
of the discharge [has not disturbed] is consistent with the con-
tinued existence of a balanced, indigenous aquatic population [of
such species]. [In determining whether or not appreciable harm or
disturbance has occurred, the Regional Administrator shall consider
evidence demonstrating compliance during the period of operation
and discharge with water quality standards designed to protect
fish and aquatic life together with any additional evidence sub-
mitted by the owner or operator.]
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Comment
1. Species
Section 316(a) does not require protection and
propagation of "species" of shellfish, fish and wildlife,
but of a "population." Thus it is the population, and not
the species, which should be the object of scrutiny to determine
whether appreciable harm has occurred. If there is a viable,
robust population of shellfish, fish and wildlife, notwithstanding
some incidental harm to particular species, there has been no
appreciable harm from the thermal component of an existing
discharge.
2. Disturbance
The "disturbance" notion may be construed to impose
a substantive requirement far more stringent than § 316(a).
Linking the concept to this section's principal substantive
test of no appreciable harm suggests that "has not disturbed"
means no more than that there has been no appreciable harm.
However, it does not assist in establishing criteria for
determining, for purposes of § 316(a), when no appreciable
harm has occurred. Literally, a rainstorm, a floating log,
or a swimmer may "disturb" an existing aquatic population.
But § 316(a) does not require that thermal discharges must .not
"disturb" a balanced, indigenous population. Rather it requires only
that they assure protection and propagation of such a population.
The relevant question in a § 316(a) determination is thus not
whether a thermal discharge will "disturb" the population, but
whether the thermal discharge will subject the population to
such severe thermal stress that continuation of the discharge
is inconsistent with the survival of a balanced, indigenous
population in and on the body of water into which the discharge
is made. We believe that the "disturb" notion adds little to
the proposed regulations. Since it may be used to defeat the
operation of § 316(a), it should be deleted and replaced with
language more consistent with that of the statute.
3. Water Quality Standards
Compliance with water quality standards should be included,
as we have done in § 122.8(a)(2), as an independent means of demon-
strating compliance with § 316(a). If that test is adopted, compli-
ance with water quality standards will become irrelevant to the "no
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-48-
appreciable harm" demonstration. Non-compliance may simply reflect
water quality standards more stringent than necessary for purposes
of § 316(a).
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(ii) (A) Whenever an applicant proposes to
base its demonstration pursuant to this paragraph on the absence
of appreciable prior harm to a population of representative,
important species, it shall so notify the Regional Administrator
at the time the application is filed. The Regional Administrator
shall promptly consult with the Director and the applicant as to
the appropriate representative, important species to be selected.
(B) If the available information is
insufficient to enable the Regional Administrator to select one or
more appropriate representative, important species, the applicant
may conduct such studies and furnish such evidence as may be
necessary to enable the Regional Administrator to select appro-
priate species. In such cases, the applicant shall have the burden
of proving the appropriateness of the species as well that its
discharge has not caused appreciable harm to the population of
such species.
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Comment
1. Representative, Important Species
EPA's proposed regulations included a "representative, impor-
tant species" demonstration. Although the data demanded by the draft
Manual would make this type demonstration infeasible, we believe that
the concept embodied in the proposed regulations is sound. Properly
implemented, the "representative, important species" principle would
provide a useful and feasible mechanism for demonstrating and deter-
mining assurance of "protection and propagation." In any demonstra-
tion or showing based in whole or in part on biological data,
identification of representative important species would greatly
reduce the time and effort necessary to gather and assess needed
data. Further, such an approach is consistent with the language of
§ 316(a) which speaks of a "population of shellfish, fish and wild-
life."
We have included the representative, important species
alternative in the "no appreciable harm" and "predictive techniques"
demonstrations which we propose.
2. Information on Appropriate Species
In many cases a § 316(a) applicant will have available in-
formation which would assist the Regional Administrator in making
a knowledgeable selection of appropriate representative important
species. Frequently, this will be the best available information
and should inform the decision. We urge the adoption of language
which makes clear the applicant's right to submit such information
and which directs the Regional Administrator to consult with the
applicant on species appropriate for selection.
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(C) Upon selection of the representative,
important species, the Regional Administrator shall promptly
notify the applicant of the species selected and thereafter
evidence of no appreciable harm may be directed to such species.
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(111) A demonstration of the absence of
prior appreciable harm shall be based on the effects of the
discharge on the relevant populations In the entire water body
segment considered as a whole.
Comment
This provision is intended to clarify the area of concern
in the "no appreciable harm" demonstration. The mixing zone
should not be excluded from that area; nor should it be the single
focus of examination. Rather, it should be considered together
with the rest of the water body segment to determine whether
appreciable harm has occurred. Impacts within the mixing zone
may or may not constitute appreciable harm In the context of the
entire segment.
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(2) Compliance with Approved State Water Quality
Standards
(i) In the case of any source, whether or not
it has commenced operation and discharge prior to the filing of
the notice required by section 122.5(a) of this Part, alternative
effluent limitations shall be included in the public notice of the
permit application if the owner or operator has demonstrated/ to
the satisfaction of the Regional Administrator, that the discharge
will comply with approved State water quality standards for fish
and aquatic life uses. Proof of a prior determination of compli-
ance in accordance with subparagraph (a)(2)(ii) of this section
shall constitute a satisfactory demonstration of compliance unless
substantial evidence indicates that the prior determination is
insufficient or inadequate. If there has been no such prior deter-
mination of compliance with approved State water quality standards
for fish and aquatic life uses, the owner or operator desiring to
make such a demonstration may submit to the Regional Administrator
such data and other information as may be necessary to enable the
Regional Administrator to make such a determination of compliance.
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Comment
The rationale for our recommended § 122.8(a)(2) is stated
at pages 39-43. We believe that compliance with water quality
standards was intended to be a principal substantive test under
§ 316(a). The recommendation would limit availability of this
demonstration to thermal discharges in compliance with water
quality standards for fish and aquatic life uses. EPA's recog-
nition and adoption of this test would facilitate the granting of
§ 316(a) requests for perhaps one-fourth to one-third of the
existing generating capacity in the country. In many of these
cases, competent government agencies will have already made a prior
determination of compliance in connection with a decision on
certification, permit or license. Where there has been such a
prior determination of compliance, EPA should give it effect un-
less the thermal criteria in the water quality standards have
changed materially since the determination. The methods for
proving a prior determination and the limitations on its effect
are specified in subparagraph (ii) below.
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(ii) A prior determination of compliance with
approved State water quality standards for fish and aquatic life
uses may be proved by submission of
(A) a certification issued under section
21(b) of the Act as in effect immediately
prior to the enactment of the 1972 Amend-
ments;
(B) a certification issued under § 401
of the Act;
(C) a discharge permit or other authoriza-
tion issued under state law; or
(D) a construction permit or operating
license issued, amended, or continued in
effect by the Atomic Energy Commission
subsequent to its Memorandum of Under-
standing with the Environmental Protection
Agency dated January 29, 1973 (38 Fed.
Reg. 2713),
unless approved State water quality standards have been changed
materially since such certification, permit, or license was issued,
amended, or continued in effect, or unless issuance, amendment
or continuation of such certification, permit, or license did not
entail a determination of compliance with water quality standards
for fish and aquatic life uses or with an equivalent substantive
test.
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Prediction of Protection
(i) In the case of any source, whether or
not it has commenced operation and discharge prior to the filing
of the notice required by section 122.5(a) of this Part, alterna-
tive effluent limitations shall be included in the public notice
of the permit application if the owner or operator has demonstrated,
to the satisfaction of the Regional Administrator, through the use
of valid, reliable predictive techniques, that the discharge will
assure protection and propagation of the balanced, indiginoujr
population in and on the pertinent water body segment.
Comment
The objective of this test is to afford new and almost
new plants and those on heavily polluted water bodies a feasible
means of demonstrating the appropriateness of § 316(a) limitations.
In all such cases the applicant and administrator are in the posi-
tion of predicting future events without the guide of direct prior
experience under circumstances similar to those expected. Simula-
tion and modeling techniques yield results which provide the basis
for reliable predictions. Other especially useful information
may be found in studies of the effects of similar discharges on
biota in similar habitat conditions. We include the representa-
tive, important species alternative in order to permit focused
data-gathering efforts.
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(ii) (A) Whenever an applicant proposes to
base its demonstration pursuant to this paragraph on prediction of
protection and propagation of a population of representative,
important species, it shall so notify the Regional Administrator
at the time the application is filed. The Regional Administrator
shall promptly consult with the Director and the applicant as
to the appropriate representative, important species to be selected.
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(B) If the available information is
insufficient to enable the Regional Administrator to select one
or more appropriate representative, important species, the
applicant may conduct such studies and furnish such evidence as
may be necessary to enable the Regional Administrator to select
appropriate species. In such cases, the applicant shall have
the burden of proving the appropriateness of the species as well as
that its discharge will assure the protection and propagation of
the population of such species.
(C) Upon selection of the representative,
important species, the Regional Administrator shall promptly notify
the applicant of the species selected and thereafter the appli-
cant's evidence may be directed toward such species.
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(iii) A demonstration pursuant to this
subsection may be based on:
(A) Results of engineering, hydrological,
or mathematical modeling studies employing accepted techniques;
(B) Evidence on the effects of similar
discharges on the populations of relevant species in similar
habitats;
(C) Evidence of the thermal tolerances
of relevant species and their relationship to predicted thermal
regimes;
(D) Data which show the area affected
by the thermal discharge to be relatively small or biologically
insignificant under natural conditions; or
(E) Projections of seasonal abundance
and distribution of relevant populations.
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[(2) Protection of Representative Important Species
(i) In the case of any source/ whether or
not it has commenced operation and discharge prior to the filing
of the notice required by section 122.5(a) of this Part, alterna-
tive effluent limitations may be included in the public notice
of the permit application if the owner or operator has demon- '
strated, to the satisfaction of the Regional Administrator, that
the discharge will assure the protection and propagation of repre-
sentative/ important species (selected in accordance with sub-
paragraph (2)(ii) of this section) whose protection and propa-
gation/ if assured/ will assure the protection and propagation
of a balanced, indigenous population of shellfish, fish and wild-
life in and on that body of water. In determining whether or
not the protection and propagation of such species will be assured,
the Regional Administrator shall consider evidence demonstrating
that the discharge will comply with the temperature requirements
for growth/ reproduction and survival of the selected species/
as specified in the water quality criteria and water quality
information published by the Administrator pursuant to section
304(a) of the Act/ together with any additional information sub-
mitted by the owner or operator or required by the Regional Admin-
istrator. ]
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[(ii) (A) Whenever an applicant proposes to
include a demonstration pursuant to this paragraph as an element
of its support for an application for a determination pursuant
to section 316(a), it shall so notify the Regional Administra-
tor at the time the application is filed. The Regional Adminis-
trator shall promptly seek the advice and recommendation of the
Director as to the species whose protection and propagation in and
on the receiving water body will, if assured, satisfy the require-
ments of subparagraph (2)(i) of this section. Any species in-
cluded in the State's approved water quality standards shall be
selected, together with such additional species as the Regional
Administrator considers appropriate. The Regional Administrator
shall advise the applicant of the species selected within 60
days after receipt of notification under this subparagraph.]
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[(B) If the available information
is insufficient to enable the Regional Administrator to select
one or more representative, important species, the applicant
may, at the request of the Regional Administrator, conduct
such studies and furnish such evidence as may be necessary to
select appropriate species. In such cases, the applicant shall
have the burden of proving the appropriateness of the species
as well as that its discharge will assure the protection and
propagation of such species.]
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[(C) Compliance with the tempera-
ture levels referred to in subparagraph (a)(2)(i) of this sec-
tion shall be determined outside a mixing zone whose temporal
and spatial (area, volume, configuration and location) distribu-
tion will assure the protection and propagation of a balanced,
indigenous population of shellfish, fish and wildlife in and
on the receiving water body.]
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(4) Low Potential Impact
(i) In the case of any source, whether or not
it has commenced operation and discharge prior to the filing of
the notice required by section 122.5(a) of this Part, alternative
effluent limitations shall be included in the public notice of
the permit application if the owner or operator has demonstrated,
to the satisfaction of the Regional Administrator, that (A) the
volume, flow, dissipative capacity and general physical condition
of the receiving water body are such that there can be no signifi-
cant impact from the discharge, and (B)'no specific characteristic
of the thermal discharge creates a likelihood of appreciable impact
on the relevant population.
Comment
This demonstration type is directed to those situations
in which the administrator can make initial generic decisions
that thermal discharges into a particular water body can have
no significant biological impact. The crux of the classification
as a low potential impact area is the relationship of the assimila-
tive capacity of the water body to the discharge in question. Open-
ocean thermal discharges, for example, can be expected to have
imperceptible impacts. Other water bodies will be identifiable
as low potential impact areas through implementation of the state
continuing planning process under § 303(e) and development of
water quality management basin plans.
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(ii) Alternative effluent limitations included
in the public notice of the permit application pursuant to this
subsection may contain appropriate monitoring requirements to
confirm the conclusion of low impact.
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(5) Lack of Irreparable Harm
(1) In the case of any source, whether or not
it has commenced operation and discharge prior to the filing of the
notice required by section 122.5(a) of this Part, alternative
effluent limitations shall be included ifl the public notice of the
permit application, under the terms and conditions and subject
to the limitations specified in paragraph (ii) of this subsection,
if no alternative effluent limitations have previously been
established pursuant to section 316(a) for the thermal component
of the discharge with respect to which application is made and
available information and data are insufficient on which to base a
knowledgeable determination that alternative effluent limitations
will assure the protection and propagation throughout the term
of a five-year permit and the applicant demonstrates, to the
satisfaction of the Regional Administrator, that:
(A) Continuation of the thermal dis-
charge during a period reasonably necessary to collect sufficient
additional information and data to permit a knowledgeable section
316(a) determination for a longer term will not result in sub-
stantial, irreversible harm to the aquatic populations inhabiting
the body of water into which the discharge is made; and
Comment
The rationale for this provision is stated in Part II.A.
of the Utility Water Act Group Comments.
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(B) Data relative to normal water
temperatures and flow rates (including seasonal variations in
these parameters), existing sources of thermal discharge, the
total dissipative capacity of the receiving water.body and other
available data indicate that there is a reasonable likelihood
of a successful demonstration for a longer term.
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(ii) Any public notice containing proposed
alternative effluent limitations pursuant to this subsection
shall provide that such alternative effluent limitations, if
established and imposed, would be subject to the following terms,
conditions and limitations:
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(A) Duration of the alternative effluent
shall be for a fixed term, not to exceed three years, to be de-
termined by consultation between the Regional Administrator and
the applicant and which shall be concurrent with and limited
co the time reasonably necessary for the required studies to be
conducted and an ultimate section 316(a) determination made on
the basis of those studies; and
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(B) The alternative effluent
limitation shall entail conditions which require the permittee
diligently to conduct the required studies, to report on the
progress of such studies at regular intervals during continuation
of the studies and to complete such studies by a specified date.
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(6) In the case of any source, whether or not it
has commenced operation and discharge prior to the filing of the
notice required by section 122.5(a) of this Part, alternative
effluent limitations shall be included in the public notice of
the permit application if the owner or operator has demonstrated,
to the satisfaction of the Regional Administrator, by whatever
reliable, probative, substantial evidence the applicant may
adduce, that the thermal discharge (taking into account the
interaction of such discharge with other pollutants) will assure
the protection and propagation of a balanced, indigenous popula-
tion of shellfish, fish and wildlife in and on the body of water
into which the discharge is made.
Comment
Proposed § 122.8(b) made clear that alternative effluent
limitations could be established on the basis of evidence out-
side the "no appreciable harm" or "representative important
species" demonstrations. However, as proposed, the regulations
would have required a hearing in all such cases. We believe that
the delay incident to a hearing should be avoided in all cases
except where specifically requested by an interested party. If
the Regional Administrator is satisfied with the applicant's
demonstration, whatever its type, he should propose alternative
effluent limitations in the notice. Hence, we urge adoption of
a provision which would direct inclusion of alternative effluent
limitations on the basis of any satisfactory demonstration.
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(b) If an applicant is unable to demonstrate to the
satisfaction of the Regional Administrator [either that no appre-
ciable harm has resulted from the thermal component of a dis-
charge (pursuant to paragraph (a)(1) of this section) or that a
discharge will assure the protection and propagation of any species
selected (pursuant to .paragraph (a) (2) of this section)] that the
discharge will assure the protection and propagation of a balanced,
indigenous population of shellfish, fish and wildlife pursuant to
subsection (a) of this section, the Regional Administrator shall
not include proposed alternative effluent limitations in the public
notice of the permit application. However, the applicant may there-
after request a hearing pursuant to section 122.10 of this Part at
which evidence may be submitted in support of the application for a
determination under section 316 (a) . Such evidence may consist of
evidence intended to satisfy the requirements of [paragraph (a)(1)
or (a)(2)] any paragraph of subsection (a) of this section, or any
other new or historical biological data, physical monitoring data,
engineering or diffusion models, or other relevant evidence.
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(c) Determinations of the Regional Administrator made
pursuant to [paragraphs (a)(1) and (a)(2)] subsection (a) of this
section may be reconsidered in any hearing held pursuant to sec-
tion 122.10 of this Part.
$ 122.9 Determination of Alternative Effluent Limitations
(a) The Regional Administrator [may] shall impose alterna-
tive effluent limitations included in the public notice of the
permit application pursuant to section 122.8(a)[(1)] of this
Part (or appropriate modifications thereof) unless[:] he finds
that none of the provisions of section 122.8(a) are satisfied.
[(1) Information received during the period pro-
vided for public comment under section 125.34(b) of this chapter
or evidence introduced at any hearing held to consider the permit
indicates that appreciable harm has occurred as a result of the
thermal component of the discharge (taking into account the
interaction of such thermal component with other pollutants )^_
or that the thermal discharge has disturbed the balanced, indigenous
population of shellfish, fish and wildlife; and]
Comment
1.
The Regional Administrator has no discretion to refuse
to establish and impose alternative effluent limitations if the
applicant has made a satisfactory demonstration. See the Comment
to § 122.8(a), supra. Further, if the applicant's demonstration
is sufficiently cogent to persuade a reasonable person, the
Regional Administrator may not deny the § 316 (a) request on the
ground that he is not "satisfied." To do so would be "arbitrary,
capricious ... or otherwise not in accordance with law." 5 U.S.C.
§ 706(2)(A).
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[(2) The applicant does not demonstrate that,
despite the occurrence of such previous harm or disturbance,
the alternative effluent limitations proposed (or appropriate
modifications thereof) will nevertheless assure the protection and
propagation of a balanced, indigenous population of shellfish,
fish and wildlife in and on the body of water into which the
discharge is made.]
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[(b) The Regional Administrator may impose alternative
effluent limitations included in the public notice of the permit
application pursuant to section 122.8(a)(2) of this Part (or appro-
priate modifications thereof) unless:
(1) Information received during the period pro-
vided for public comment under section 125.34(b) of this chapter
or evidence introduced at any hearing held to consider the permit
indicates: (i) that the species selected by the Regional Administra-
tor is or are not representative, in terms of biological needs, or
a balanced, indigenous population in the receiving water body; or
(ii) that the temperature, requirements employed in calculating the
proposed alternative effluent limitations are not adequate to assure
the protection and propagation of those species in and on the re-
ceiving water body; or (iii) that the temporal or spatial (area,
volume, location and configuration) distribution of the mixing zone
permitted is excessively large or otherwise inconsistent with the
purposes of section 316 (a); and]
[(2) This evidence is not rebutted.]
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(b) The Regional Administrator may establish and impose
alternative effluent limitations, after notice and opportunity
for a hearing, which require compliance with applicable technology-
based control requirements of section 301, as determined in
accordance with guidelines promulgated by the Administrator pur-
suant to section 304(b) , or with applicable standards of performance
under section 306, or, if more stringent, with control requirements
necessary to achieve water quality standards pursuant to section
301(b)(l)(C), but which alternative effluent limitations defer the
date by which such applicable control requirements must otherwise
be achieved pursuant to sections 301 or 306 or under regulations
promulgated, by the Administrator, if:
Comment
The rationale for this provision is explained in Part II.B.
of the Utility Water Act Group Comments.
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(1) Upon expiration of a permit containing alterna-
tive effluent limitations, the Regional Administrator determines,
after reexamining the terms and conditions of the permit and con-
sidering the results of any monitoring the permittee conducted
during the term of the permit, that alternative effluent limita-
tions (or appropriate modifications thereof) are no longer suffi-
ciently stringent to assure the protection and propagation of a
balanced, indigenous population of shellfish, fish and wildlife
in and on the body of water into which the discharge is made; or
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(2) In any case in which the hearing under section
316 (a) is deferred pursuant to section 122.10(b) of this Part and
the time available prior to the final compliance date under sec-
tions 301 and 306 of the Act, or under regulations promulgated pur-
suant to sections 304(b) or 306, is insufficient to permit the
applicant to conduct the necessary biological and engineering
studies, participate in the hearing and subsequently take the
necessary measures to comply with the applicable control require-
ments by the final compliance date otherwise applicable; provided
that the applicant demonstrates, to the satisfaction of the
Regional Administrator, that continuation of operation and discharge
up to the compliance date established pursuant to this subsection
will not materially interfere with the restoration and maintenance
of a balanced, indigenous population once such compliance is
achieved.
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(c)(i) In cases where the Regional Administrator is
unable to make all the determinations required by section 125.31
of this chapter and the owner or operator has submitted the in-
formation required to satisfy section 122,8(a) of this Part, the
Regional Administrator shall, at the request of the owner or
operator, issue a public notice setting forth a tentative deter-
mination to establish alternative effluent limitations or issue
a public notice setting forth a tentative determination to deny .
the request to establish alternative limitations. Any such notice
shall provide identical opportunities and procedures for public
comment and hearing as provided in section 125.32 of this chapter and
sections 122.6 and 122.10 of this Part.
(ii) The requirements of section 122.9(a) of this
Part shall govern establishment of any alternative effluent limita-
tion pursuant to this subsection.
(iii) Any alternative effluent limitation established
pursuant to this subsection shall subsequently be included in the
notice required by section 125.32(c) provided/ howeverf that
issues relating to such alternate limitations cannot be raised
at any hearing held pursuant to section 125^.34 and such alternate
limitation must be included in any final permit issued in accordance
with part 125.
Comment
The rationale for this provision is detailed in the Utility
Water Act Group Comments at pages 54 to 55.
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§ 122.10 Public Hearings
(a) Requests for Hearings
(1) If alternative effluent limitations are pro-
posed any person may, within 30 days following the issuance of
the public notice of the permit application containing such pro-
posed limitations, submit to the Regional Administrator a request
for a hearing pursuant to section 125.34 of this chapter to con-
sider whether the alternative effluent limitations will assure
the protection and propagation of a balanced, indigenous popu-
lation of shellfish, fish and wildlife in and on the body of water
into which the discharge is to be made.
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(2) If effluent limitations or alternative efflu-
ent limitations are proposed any person may, within 30 days fol-
lowing the issuance of the public notice of the permit applica-
tion, or, if a public hearing is proposed to be held pursuant
to section 125.34(b)[,] of this chapter, within [20] 1£ days fol-
lowing issuance of the notice provided in section 125.34(b)[(4)](1),
or, if a public hearing is held pursuant to section 125.34(b) of
this chapter, within 20 days following issuance of the notice pro-
vided in section 125.34(b)(4), submit to the Regional Administra-
tor a request for a hearing pursuant to section 125.34(c) to con-
sider any issues concerning the permit application including whether
the effluent limitations or the alternative effluent limitations
proposed are more stringent than necessary to assure the protec-
tion and propagation of a balanced indigenous population of shell-
fish, fish and wildlife in and on the body of water into which
the discharge is to be made.
Comment
The rationale for this change is stated in UWAG's
§ 316(a) Comments at pages 29-31.
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(3) Any request for a hearing made pursuant to
paragraph (a)(2) of this section shall include the issue of pro-
posed effluent limitations and/or proposed alternative effluent
limitations on the thermal component of the discharge in the state-
ment of issues proposed to be considered at the hearing, as pro-
vided by section 125.34(c)(3), of this chapter.
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(4) If a request for a hearing to consider the
proposed effluent limitations or the proposed alternative efflu-
ent limitations on the thermal component of the discharge is granted,
the Regional Administrator shall consolidate this issue with other
issues, if any, relating to the proposed permit and its condi-
tions raised by the owner or operator, or by any other person,
which are included in the list or lists of issues submitted
pursuant to section 125.34(c)(3) of this chapter and shall
consider and resolve all such issues in a single hearing,
unless he determines to defer the hearing on issues related
to the proposed effluent limitations or proposed alternative
effluent limitations on the thermal component pursuant to para-
graph (b) of this section or deems [such a procedure] consolidated
consideration and resolution to be inappropriate for other
reasons.
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(5) Any hearing, other than a hearing held
pursuant to section 125.34(b) of this chapter, held pursu-
ant to this section shall be conducted in accordance with
the provisions of sections 34(a) and (c) through (o) of Part
125 of this chapter.
(6) The Regional Administrator may not impose
an alternative effluent limitation on the thermal component
of any discharge which is less stringent than the effluent
limitations otherwise required by sections 301 or 306 of the
Act except in compliance with section 122.9 of this part
unless the owner or operator has otherwise demonstrated that
the effluent limitations otherwise required are more strin-
gent than necessary to assure the protection and propagation
of a balanced, indigenous population of shellfish, fish, and
wildlife.
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(7) The Regional Administrator may impose an
alternative effluent limitations with respect to the thermal
component of any discharge only in accordance with section 122.9
of this Part or if he is otherwise satisfied that such alterna-
tive effluent limitation (taking into account the interaction
of such thermal component with other pollutants) will assure
the protection and propagation of a balanced, indigenous popu-
lation of shellfish, fish and wildlife in and on the body of
water into which the discharge is to be made.
(8) The Regional Administrator may hold a hear-
ing pursuant to section 125.34 of this chapter in any case
or class of cases in which he deems it appropriate.
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(b) Deferral of Hearings .
(1) In any case in which the Regional Administrator
determines, after reviewing the evidence which the owner or
operator proposes to present at the hearing, that sufficient
information is likely not to be available upon which to base
a knowledgeable determination of whether or not the proposed
effluent limitations on the thermal components of the discharge
are more stringent than necessary, he may order that the hearing
requested pursuant to section 316(a) be severed from the hearing
scheduled pursuant to section 402 of the Act and be deferred until
the owner or operator has completed such engineering and biological
studies as the Regional Administrator may consider necessary; pro-
vided, however, that the owner or operator shall be granted an
immediate hearing on demand notwithstanding the Regional Adminis-
trator's determination that sufficient information is not likely
to be available.
Comment
The applicant's opportunity to seek § 316(a) limitations
may be foreclosed by a deferred hearing as effectively as by a
denial of a § 316(a) request. He should therefore be entitled
to receive a prompt hearing and final, appealable decision upon
the administrator's determination that sufficient information is
not available.
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(2) if the studies required under paragraph
(b) (1) of this section have not been completed at the con-
clusion of the hearing held pursuant to section 402 of the
Act and Part 125 of this chapter, the Regional Administrator
shall issue a permit which is for a term of up to five years
and which establishes a schedule of compliance pursuant to
§ 122.9(b) of this part or which requires that the point source
achieve the effluent limitations initially proposed for the
control of the thermal component of the discharge no later than
the date specified in applicable effluent limitations guidelines
issued pursuant to sections 304 (b) or 306 of the Act but which
affords the permittee an opportunity to request a hearing under
section 316 (a) after having conducted biological and engineering
studies in order to develop information sufficient for the
Regional Administrator to make a knowledgeable determination as
to whether alternative effluent limitations may be imposed pur-
suant to section 316 (a).
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(3) Any hearing scheduled under paragraph (b)(2)
of this section shall be publicized in accordance with the
requirements of section 125.32(b) of this chapter and shall
be held sufficiently in advance of the final compliance date
specified in the permit to allow the permittee to take neces-
sary measures to comply by that date in the event its request
for modification of thermal limits is denied after the hear^
ing is concluded.
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(c) Appeal or review of decision of Regional Administrator
(1) Any party shall have the right to appeal
to the Administrator from a decision of the Regional Admin-
istrator imposing effluent limitations or alternative efflu-
ent limitations on the thermal component of a discharge fol^
lowing a hearing held pursuant to section 125.34(c) of this
chapter. The Administrator may, on his own motion, review
any decision of the Regional Administrator. Such appeal or
review sh^ll be conducted in accordance with the provisions
of section 125.34(p) of this chapter.
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(2) If an owner or operator did not request
a hearing pursuant to paragraph (a) of this section in order
to consider whether effluent limitations proposed for the
control of the thermal component of a discharge are more strin-
gent than necessary to assure the protection and propagation
of a balanced, indigenous population of shellfish, fish and
wildlife in and on the body of water into which discharge
is to be made, he may raise this issue on appeal to the Admin-
istrator only if:
(i) The public notice also contained pro-
posed alternative effluent limitations less stringent than
those otherwise required under sections 301 or 306 of the Act;
and
(ii) The decision of the Regional Admin-
istrator after the hearing imposed effluent limitations or
alternative effluent limitations with respect to the thermal
component of the discharge more stringent than those contained
in the public notice of the application.
(3) Acceptance of a permit imposing effluent
limitations or alternative effluent limitations on the thermal
component of the discharge shall not affect the right of the
owner or operator to appeal the decision of the Regional
Administrator.
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SUBPART C
STATE DETERMINATION OF ALTERNATIVE EFFLUENT LIMITATIONS
§ 122.11 Application for Determination under Section 316(a)
(a)(1) The owner or operator of any point source
who desires the Director to [impose] establish alternative
effluent limitations pursuant to section 316(a) shall so notify
the Director in writing prior to or upon the filing of an
application for a NPDES permit.
(2) Notice pursuant to paragraph (a)(1) of
this section shall, in the case of any point source for which
a discharge permit application has been filed prior to the
publication of these proposed regulations, be given not later
than 60 days after promulgation of these regulations or 60 days
after promulgation of effluent limitations guidelines under
section 304 or standards of performance under section 306
applicable to that point source, whichever is later.
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(b) The owner or operator shall submit to the Director
within 60 days thereafter such data and other information
as are available to it; and as soon as practicable thereafter,
such other data as it wishes to be considered in support of
its application for alternative effluent limitations.
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(c) As soon as practicable after the notice required
by subsection (a) of this section the owner or operator may
propose stipulations with respect to identification of the
population whose protection must be assured, selection of
representative, important species, or classification of the
discharge as a low potential impact discharge for the purposes
of a demonstration pursuant to section 122.13 of this Part.
The Director may agree to such stipulations as are consistent
with the purposes of section 316(a) of the Act. Any such
stipulation reached pursuant to this subsection shall be sub-
ject to challenge by any person other than the applicant or
Director at a hearing held pursuant to section 122.15(a) of
this Part.
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§ 122.12 Public Notice
(a) In addition to the information required by sec-
tion 124.32(c) of this chapter, the public notice of any appli-
cation for a permit for a discharge which is subject, pursu-
ant to sections 301 or 306 of the Act, to effluent limitations
controlling its thermal component and as to which an appli-
cation has been filed pursuant to section 122.11 of this Part
shall include:
(1) a statement that the thermal component
of the discharge is subject to effluent limitations pursu-
ant to sections 301 or 306 of the Act and a brief descrip-
tion (which shall include a quantitative statement) of the
thermal effluent limitations proposed pursuant to sections
301 or 306; and
(2) a statement that such an application has
been filed and that alternative (and less stringent) efflu-
ent limitations may be imposed on the thermal component of
the discharge pursuant to section 316(a), and a brief descrip-
tion (which shall include a quantitative statement) of the
proposed alternative effluent limitations, if any.
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(b)(1) If no proposed alternative effluent limita-
tions are described in the public notice of the application,
it shall include, in addition to the statements required by
paragraph (a) of this section, a statement that the applicant
is entitled, at any time within 30 days of the issuance of
the public notice, to request a hearing pursuant to section
124.36 of this chapter in order to demonstrate, pursuant to
section 316(a) and these regulations, that the proposed efflu-
ent, limitations are more stringent than necessary to assure
X.
the protection and propagation of a balanced, indigenous popu-
lation of shellfish, fish and wildlife in and on the body of
water into which the discharge is to be made.
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(2) If proposed alternative effluent limita-
tions are described in the public notice of the permit appli-
cation (in addition to the limitations otherwise applicable
pursuant to sections 301 or 306 of the Act), the notice shall
include, in addition to the statements required by paragraph
(a) of this section, a statement that the applicant has sub-
mitted evidence in support of its request for alternative
effluent limitations which warrants further consideration
and that the Director is considering imposition of such alterna-
tive limitations. The notice shall state that all data sub-
mitted by the applicant, as well as a summary thereof, are
available at the office of the Director for public inspection
during office hours. The notice must also state that any person
may comment in writing upon these proposed alternative efflu-
ent limitations in accordance with the provisions of section
124.32 of this chapter and may request a hearing pursuant
to section 124.36 of this chapter.
(c) The public notice of any hearing held pursu-
ant to section 122.15(a) of this Part shall include the informa-
tion required by section 124.37 of this chapter.
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(d) Nothing in this section shall be construed to
relieve the applicant of the burden of demonstrating to the
satisfaction of the Director, after opportunity for public
hearing afforded by section 122.15 of this part, that the thermal
effluent limitations proposed pursuant to sections 301 or
306 of the Act are more stringent than necessary to assure
the protection and propagation of a balanced, indigenous popula-
tion of shellfish, fish and wildlife. Such a demonstration may
be made by demonstrating that less stringent thermal effluent
limitations are sufficiently stringent to assure such protection
and propagation.
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§ 122.13 Proposal of Alternative Effluent Limitations '
(a) The Director [may] shall include in the public
notice of the permit application proposed alternative efflu-
ent limitations on the thermal component of the discharge
if the owner or operator satisfies the requirements of pither]
any subparagraph [(a) (1) or (a)(2)].of subsection (a) of
this section.
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(1) Demonstration of Absence of Prior Harm
(i) In the case of a point source which has
commenced operation and discharge prior to the filing of the
notice required by section 122.11(a) of this Part, alterna-
tive effluent limitations may be included in the public notice
of the permit application if the owner or operator has demon-
strated, to the satisfaction of the Director, that no appre-
ciable harm has resulted from the thermal 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 the [species] population of shell-
fish, fish and wildlife in and on the water body segment [of
water] into which the discharge has been made, and [that]
therefore that the thermal component of the discharge [has
not disturbed] is consistent with the continued existence of
a balanced, indigenous aquatic population [of such species].
[In determining whether or not appreciable harm or disturbance
has occurred, the Director shall consider evidence demonstrating
compliance during the period of operation and discharge with
water quality standards designed to protect fish and aquatic
life, together with any additional evidence submitted by the
«
owner or operator.]
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(ii)(A) Whenever an applicant proposes to
base its demonstration pursuant to this paragraph on the absence
of appreciable prior harm to a population of representative,
important species, it shall so notify the Director at the time
the application is filed. The Director shall promptly consult
with the applicant as to the appropriate representative, im-
portant species to be selected.
(B) If the available information is
insufficient to enable the Director to select one or more
appropriate representative, important species, the applicant
may conduct such studies and furnish such evidence as may be
necessary to enable the Director to select appropriate species.
In such cases, the applicant shall have the burden of proving
the appropriateness of the species as well as that its discharge
has not caused appreciable harm to the population of such
species.
(C) Upon selection of the representative;
important species, the Director shall promptly notify the
applicant of the species selected and thereafter evidence of
no appreciable harm may be directed to such species.
(iii) A demonstration of the absence of
prior appreciable harm shall be based on the effects of the
discharge on the relevant population in the entire water body
segment considered as a whole.
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(2) Compliance with Approved State Water Quality
Standards
(i) In the case of any source, whether or not
it has commenced operation and discharge prior to the filing of
the notice required by section 122.iKa) of this Part, alternative
effluent limitations shall be included in the public notice of the
permit application if the owner or operator has demonstrated, to
the satisfaction of the Director, that the discharge will comply
with approved State water quality standards for fish and aquatic
life uses. Proof of a prior determination of compliance in
accordance with subparagraph (a)(2)(ii) of this section shall
constitute a satisfactory demonstration of compliance unless
substantial evidence indicates that the prior determination is
insufficient or inadequate. If there has been no such prior
determination of compliance with approved State water quality
standards for fish and aquatic life uses, the owner or operator
desiring to make such a demonstration may submit to the Director
such data and other information as may be necessary to enable
the Director to make such a determination of compliance.
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(ii) A prior determination of compliance with
approved State water quality standards for fish and aquatic life
uses may be proved by submission of
(A) a certification issued under section
21(b) of the Act as in effect immediately
prior to the enactment of the 1972 Amend-
ments;
(B) a certification issued under § 401
of the Act;
(C) a discharge permit or other authoriza-
tion issued under state law; or
(D) a construction permit or operating
license issued, amended, or continued in
effect by the Atomic Energy Commission
subsequent to its Memorandum of Under-
standing with the Environmental Protection
Agency dated January 29, 1973 (38 Fed.
Reg. 2713),
unless approved State water quality standards have been changed
materially since such certification, permit, or license was issued,
amended, or continued in effect, or unless issuance, amendment
or continuation of such certification, permit, or license did not
entail a determination of compliance with water quality standards
for fish and aquatic life uses or with an equivalent substantive
test.
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(3) Prediction of Protection
(i) In the case of any source, whether or not
it has commenced operation and discharge prior to the filing
of the notice required by section 122.11(a) of this Part,
alternative effluent limitations shall be included in the
public notice of the permit application if the owner or
operator has demonstrated, to the satisfaction of the Director,
through the use of valid, reliable predictive techniques, that
the discharge will assure protection and propagation of the
balanced, indigenous population in and on the pertinent water
body segment.
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(ii)(A) Whenever an applicant proposes to
base its demonstration pursuant to this paragraph on the pre-
diction of protection and propagation of a population of
representative, important species, it shall so notify the Direc-
tor at the time the application is filed. The Director shall
promptly consult with the applicant as to the appropriate.
representative, important species to be selected.
(B) If the available information is
insufficient to enable the Director to select one or more
appropriate representative, important species, the applicant .
may conduct such studies and furnish such evidence as may be
necessary to enable the Director to select appropriate species.
In such case, the applicant shall have the burden of proving
the appropriateness of the species as well that is discharge
will assure the protection and propagation of the population
of such species.
(C) Upon selection of the representa-
tive , important species, the Director shall promptly notify
the applicant of the species selected and thereafter the
applicant's evidence may be directed to such species.
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(iii) A demonstration pursuant to this
subsection may be based on:
(A) Results of engineering, hydro-
logical/ or mathematical modeling studies employing accepted
techniques;
(B) Evidence on the effects of
similar discharges on the population of relevant species in
similar habitats;
(C) Evidence of the thermal tole-
rances of relevant species and their relationship to predicted
thermal regimes;
(D) Data which show the area affected
by the thermal discharge to be relatively small or biologically
insignificant under natural conditions; or
(E) Projections of seasonal abundance
and distribution of relevant populations.
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[(2) Protection of Representative, Important Species
(i) In the case of any source, whether
or not it has commenced operation and discharge prior to the
filing of the notice required by section 122.11(a) of this
Part, alternative effluent limitations may be included
in the public notice of the permit application if the owner
or operator has demonstrated, to the satisfaction of the Director,
that the discharge will assure the protection and propaga-
tion of representative, important species (selected in accord-
ance with paragraph (a)(2)(i) of this section) whose protec-
tion and propagation, if assured, will assure the protection
and propagation of a balanced, indigenous population of shell-
fish, fish and wildlife in and on that body of water. In deter-
mining whether or not the protection and propagation of such
species will be assured, the Director shall consider evidence
demonstrating that the discharge will comply with the tempera-
ture requirements for growth, reproduction and survival of
the selected species, as specified in the water quality cri-
teria and water quality information published by the Admin-
istrator pursuant to section 304(a) of the Act, together with
any additional information submitted by the owner or operator
or required by the Director.]
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[(ii)(A) Whenever an applicant proposes
to include a demonstration pursuant to this paragraph as an
element of its support for an application for a determina-
tion pursuant to section 316 (a), it shall so notify the Dir-
ector at the time the application is filed. The
Director shall promptly select the species whose protection
and propagation in and on the receiving water body will, if
assured, satisfy the requirements of paragraph (a) (2) (i) of
this section. Any species included in the State's approved
water quality standards shall be selected, together with such
additional species as the Director considers appropriate. The
Director shall advise the applicant of the species selected
within 60 days after receipt of notification under this sub-
paragraph.]
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[(B) If the available information is
insufficient to enable the Director to select one or more
representative, important species, the applicant may, at the
request of the Director, conduct such studies and furnish
such evidence as may be necessary to select appropriate species.
In such case, the applicant shall have the burden of proving
the appropriateness of the species as well as that its dis-
charge will assure the protection and propagation of such
species.]
[(C) Compliance with the temperature
levels referred to in paragraph (a)(2)(i) of this section shall
be determined outside a mixing zone whose temporal and spatial
(area, volume, configuration and location) distribution will
assure the protection and propagation of a balanced, indigenous
population of shellfish, fish and wildlife in and on the receiv-
ing water body. ]
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(4) Low Potential Impact.
(i) In the case of any source, whether
or not it has commenced operation and discharge prior to the
filing of the notice required by section 122.11 (a) of this
Part, alternative effluent limitations shall be included in the
public notice of the permit application if the owner or operator
has demonstrated, to the satisfaction of the Director, that
(A) the volume, flow, dissipative capacity and general physical
condition of the receiving water body are such that there can be
no significant impact from the discharge, and (B) no specific
characteristic of the thermal discharge creates a likelihood
of appreciable impact on the relevant population.
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-110-
(ii) Alternative effluent limitations
included in the, py^l''^ notice of the permit app 3. j. cation pur~
suant to this subsection may contain appropriate monitoring
requirements to confirm the conclusion of low impact.
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(5) Lack of Irreparable Harm.
(i) In the case of any source, whether or not
it has commenced operation and discharge prior to the filing of
the notice required by section 122.11(a) of this Part, alternative
effluent limitations shall be included in.the public notice..of the
permit application, under the terms and conditions and subject to
the limitations specified in paragraph (ii) of this subsection, if
alternative effluent limitations have previously been established
pursuant to section 316(a) for the thermal component of the dis-
charge with respect to which application is made and available
information and data are insufficient on which to base a knowledge-
able determination that alternative effluent limitations will assure
the protection and propagation throughout the term of a five-year
permit and the applicant demonstrates, to the satisfaction of the
Director, that;
(A) Continuation of the thermal discharge
during a >period reasonably necessary to collect sufficient additional
information and data to permit a knowledgeable section 316(a) de-
termination for a longer term will not result in substantial,
irreversible harm to the aquatic populations inhabiting the body
of water into which the discharge is made; and
(B) Data relative to normal water tempera-
tures and flow rates (including seasonal variations in these para-
meters), existing sources of thermal discharge, the total dissipa-
tive capacity of the receiving water body and other available data
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indicate that there is a reasonable likelihood of a successful
demonstration for a longer term.
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-113-
(ii) Any public notice containing proposed
alternative effluent limitations pursuant to this subsection
shall provide that such alternative effluent limitations, if
established and imposed, would be subject to the following
terms, conditions and limitations:
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-114-
(A) Duration of the alternative
effluent shall be for a fixed term, not to exceed three years,
to be determined by consultation between the Director and the
applicant and which shall be concurrent with and limited to the
time reasonably necessary for the required studies to be con-
ducted and an ultimate section 316(a) determination made on the
basis of those studies; and
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-115-
(B) The alternative effluent limitation
shall entail conditions which require the permittee diligently to
conduct the required studies, to report on the progress of such
studies at regular intervals during continuation of the studies
and to complete such studies by a specified date.
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(6) In the case of any source, whether or not
it has commenced operation and discharge prior to the filing of
the notice required by section 122.11(a) of this Part, .alterna-
tive effluent limitations shall be included in the public notice
of the permit application if the' owner or operator has demonstrated,
to the satisfaction of the Director by whatever reliable, proba-
.tive, substantial evidence the applicant may adduce, that the
thermal discharge (taking into account the interaction of such
discharge with other pollutants) will assure the protection and
propagation of a balanced, indigenous population of shellfish,
fish and wildlife in and on the body of water into which the
discharge is made.
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(b) If an applicant is unable to demonstrate to
the satisfaction of the Director [either that no appreciable
harm has resulted from the thermal component of a discharge (pur-
suant to subparagraph (a)(1) of this section) or that a discharge
will assure the protection and propagation of any species selected
(pursuant to subparagraph (a)(2) of this section)] that the dis-
charge will assure the protection and propagation of a balanced,
indigenous population of shellfish, fish and wildlife pursuant
to subsection (a) of this section, the Director shall not include
proposed alternative effluent limitations in the public notice
of the permit application. However, the applicant may thereafter
request a hearing pursuant to section 122.15 of this Part at which
evidence may be submitted in support of the application for a
determination under section 316(a). Such evidence may consist
of evidence intended to satisfy the requirements of [paragraph
(a)(1) or (a)(2)] any paragraph of subsection (a) of this section,
or any other new or historical biological data, physical monitoring
data, engineering or diffusion models, or .other relevant evidence.
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(c) Determinations of the Director made pursuant to
[paragraphs (a)(1) and (a)(2)] subsection (a) of this section may
be reconsidered in any hearing held pursuant to section 122.15
of this Part.
§ 122.14 Determination of Alternative Effluent Limitations
(a) The Director [may] shall impose alternative
effluent limitations included in the public notice of the permit
application pursuant to section 122.13(a)[(1)] of this Part (or
appropriate modifications thereof) unless[;] he finds that none
of the provisions of section 122.13(a)^are satisfied.
[(1) Information received during the period
provided for public comment under section 124,34 of this chapter
or evidence introduced at any hearing held to consider the per-
mit indicates that appreciable harm has occurred as a result of the
thermal component of the discharge (taking into acount the inter-
action of such thermal component with other pollutants)^ or that
the thermal discharge has disturbed the balanced, indigenous
population of shellfish, fish and wildlife; and]
[(2) The applicant does not demonstrate that
despite the occurrence of such previous harm or disturbance, the
alternative effluent limitations proposed (or appropriate modifi-
cations thereof) will nevertheless assure the protection and
propagation of a balanced, indigenous population of shellfish,
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fish and wildlife in and on the body of water into which the
discharge is to be made.]
[(b) The Director may impose alternative
effluent limitations included in the public notice of the permit
application pursuant to section 122.14(a) (2) of this Part (or
appropriate modifications thereof) unless:]
[(1) Information received during the period
provided for public comment under section 124.34 of this chapter
or evidence introduced at any hearing held to consider the permit
indicates (i) that the species selected by the Director is or are
not representative, in terms of biological needs, of a balanced,
indigenous population in the receiving water body, or (ii) that
the temperature requirements employed in calculating the proposed
alternative effluent limitations are not adequate to assure the
protection and propagation of those species in and on the re-
ceiving water body; or (iii) that the .temporal and spatial (area,
volume, location and configuration) distribution of the mixing
zone permitted are excessively large or otherwise inconsistent with
the purposes of section 316(a); and]
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(b) The Director may establish and impose alternative
effluent limitations/ after notice and opportunity for a hearing,
which require compliance with applicable technology-based
control requirements of section 301, as determined in
accordance with guidelines promulgated by the Administrator
pursuant to section 304(b), or with applicable standards of
performance under section 306, or, if more stringent, with
control requirements necessary to achieve water quality standards
pursuant to section 301(b)(1)(C), but which alternative
effluent limitations defer the date by which such applicable
control requirements must otherwise be achieved pursuant to
sections 301 or 306 or under regulations promulgated by the
Administrator/ if:
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(1) Upon expiration of a permit containing alterna-
tive effluent limitations, the Director determines, after reexamining
the terms and conditions of the permit and considering the results
of any monitoring the permittee conducted during the term of
the permit, that alternative effluent limitations (or appropriate
modifications thereof) are no longer sufficiently stringent
to assure the protection and propagation of a balanced, indigenous
population of shellfish, fish and wildlife in and on the body
of water into which the discharge is .made; or
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-122-
(2) In any case in which the hearing under section
316 (a) is deferred pursuant to section 122.15(b) of this Part and
the time available prior to the final compliance date under sec-
tions 301 or 306 of the Act, or under regulations promulgated pur-
suant to sections 304(b) or 306, is insufficient to permit the
applicant to conduct the necessary biological and engineering
studies, participate in the hearing and subsequently take the
necessary measures to comply with the applicable control require-
ments by the final compliance date otherwise applicable ; provided
that the applicant demonstrate to the satisfaction of the Director,
that continuation of operation and discharge up to the compliance
date established pursuant to this subsection will not materially
interfere with the restoration and maintenance of a balanced, in-
digenous population once such compliance is achieved.
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-123-
(c)(1) In cases where the Director is unable
to make all the determinations required by section 124.31
of this chapter and the owner or operator has submitted
the information required to satisfy, any provision of section
122.13 (a), of this Part, the Director shall, at the
request of the owner or operator, issue a public notice setting
forth a tentative determination to establish alternative
effluent limitations or issue a public notice setting
forth a tentative determination to deny the request to establish
alternative limitations. Any such notice shall provide
identical opportunities and procedures for public comment
and hearing as provided in section 124.32 of this chapter and
sections 122.12 and 122.15 of this Part.
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-124-
(2) The requirements of section 122.14(a)
of this Part shall govern establishment of any alternative
effluent limitation to this subsection.
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-125-
(3) Any alternate effluent limitation
established pursuant to this subsection shall sub-
sequently be included in the notice required by section
124.32 (c) of this chapter provided, however/ that
issues relating to such alternate limitation cannot be raised
at any hearing held pursuant to section 124.36 and such alter-
nate limitation must be included in any final permit issued
in accordance with part 124.
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-126-
§ 122.15 Public Hearings
(a) Requests for Hearings
(1) If alternative effluent limitations are pro-
posed any person may, within 30 days following the issuance
of the public notice of the permit application containing such
proposed limitations, submit to the Director a request for a
hearing pursuant to Section 124.32(b) of this chapter to con-
sider whether the alternative effluent limitations will assure
the protection and propagation of a balanced indigenous popu-
lation of shellfish, fish and wildlife in and on the body of
water into which the discharge is to be made.
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(2) If effluent limitations or alternative effluent
limitations are proposed any person may, within 30 days follow-
ing the issuance of the public notice of the permit application,
submit to the Director a request for a hearing pursuant to Sec-
tion 124.36 of this chapter to consider any issues concerning
the permit application including whether the effluent limita-
tions or the alternative effluent limitations proposed are more
stringent than necessary to assure the protection and propagation
of a balanced indigenous population of shellfish, fish and wild-
life in and on the body of water into which the discharge is
to be made.
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(3) If a request for a hearing to consider the
proposed effluent limitations or the proposed alternative ef-
fluent limitations on the thermal component of the discharge
is granted, the Director shall consolidate this issue with other
issues, if any, relating to the proposed permit and its condi-
tions raised by the owner or operator, or by any other person,
and shall consider and resolve all such issues in a single hear-
ing, unless he determines to defer the hearing on issues related
to the proposed effluent limitations or proposed alternative
effluent limitations on the thermal component pursuant to para-
graph (b) of this section or deems [such a procedure] consolidated
consideration and resolution to be inappropriate for other rea-
sons.
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(4) The Director may not impose an alternative
effluent limitation on the thermal component of any discharge
which is less stringent than the effluent limitations other-
wise required by sections 301 or 306 of the Act except in com-
pliance with section 122.14 of this Part unless the owner or
operator has otherwise demonstrated that the effluent limita-
tions otherwise required are more stringent than necessary to
assure the protection and propagation of a balanced, indigenous
population of shellfish, fish and wildlife.
(5) The Director may impose an alternative ef-
fluent limitation with respect to the thermal component of any
discharge only in accordance with section 122.14 of this Part or
if he is otherwise satisfied that such alternative effluent
limitation (taking into account the interaction ,of such ther-
mal compotent with other pollutants) will assure the protec-
tion and propagation of a balanced, indigenous population of
shellfish, fish and wildlife in and on the body of water into
which the Discharge is to be made.
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(b) Deferrals of Hearings
The provisions of Section 122.10(b) of this part
are applicable in any case in which the Director determines,
after reviewing the evidence which the owner or operator pro-
poses to present at the hearing, that sufficient information
is likely not to be available upon which to base a knowledge^
able determination of whether or not the proposed effluent limita-
tions on the thermal component of the discharge are more stringent
than necessary.
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§ 122.16 Transmission to Regional Administrator of Proposed
Effluent Limitations
(1) Any State or interstate agency whose permit
program has been approved pursuant to section 402 of the Act
and part 124 of this chapter which proposes to issue a permit
containing effluent limitations on the thermal component of
a discharge less stringent than those otherwise required by
sections 301 or 306 shall, if transmittal of such permit to
the Regional Administrator is required under the agreement pro-
vided for in section 124.46 of this part, indicate to the Region-
al Administrator that the proposed effluent limitations are
less stringent and shall set forth the grounds upon which they
were proposed.
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(2) The Regional Administrator may comment upon,
object to or make recommendations with respect to such proposed
effluent limitations pursuant to any agreement entered into
under section 124.46 and may request a public hearing to con-
sider them pursuant to section 124.36.
(3) If the Regional Administrator comments upon,
objects to, or makes recommendations with respect to proposed
alternative effluent limitations, the applicant shall be notified
of such comment, objection or recommendation. Within 30 days
following such notice, the applicant may request a hearing pur-
suant to section 124.36 of this part to consider such comment,
objection or recommendations of the Regional Administrator.
§ 122.17 Transmission to Regional Administrator of Issued
Effluent Limitations~
Any State or interstate agency which has issued a permit
containing effluent limitations with respect to the thermal
component of a discharge shall, in transmitting a copy of the
permit to the Regional Administrator pursuant to section 124.47
of this chapter, indicate whether or not such effluent limita-
tions are less stringent than would otherwise be required under
sections 301 or 306 of the Act and, if they are less stringent,
shall also transmit the evidence (including the record of any
hearing) upon which they were determined.
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Comment
An objection or recommendation by the Regional Administrator
may significantly affect the applicant's rights in a § 316(a)
determination by the Director. Unless provision is made for a
hearing at the applicant's instance, it will have no recourse
short of seeking judicial review. Thus, we urge adoption of a
provision which will ensure that the applicant receives notice
of, and opportunity for a hearing on, any prejudicial comment,
objection or recommendation of the Regional Administrator.
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B. Technical Critique of § 316(a) Guidance Manual
(EEI Environment & Energy Committee, Water
Quality Subcommittee, EEI Ad Hoc Water Quality
Group and UWAG Personnel)
-------
ATTACHMENT B
EDISON ELECTRIC INSTITUTE
ENVIRONMENT & ENERGY COMMITTEE
WATER QUALITY SUBCOMMITTEE
TASK FORCE ON SECTION 316(a)
GUIDANCE MANUAL
J. A. R. HAMILTON, PH.D., CHAIRMAN
in conjunction with
EDISON ELECTRIC INSTITUTE AD HOC WATER QUALITY GROUP
AND
THE UTILITY WATER ACT GROUP
TECHNICAL CRITIQUE OF § 316(a) GUIDANCE MANUAL
PART I -- BIOLOGICAL ASPECTS
PART II --PHYSICAL ASPECTS
TO ACCOMPANY COMMENTS ON
EPA PROPOSED REGULATIONS § 316(a)
June 26, 1974
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PART I BIOLOGICAL ASPECTS
SUMMARY
Section 316(a) of the Federal Water Pollution Control
Act permits relaxation of thermal effluent limitations if
the source can demonstrate that such limitations are unneces-
sarily stringent to assure the protection of the "balanced,
indigenous population of shellfish, fish and wildlife in
and on the body of water into which the discharge is to be
made." The intent of § 316(a) is to provide reasonable means
by which excessively stringent thermal limitations may be
relaxed; in order to avoid enormous unnecessary costs.
A. Deficiencies of the Manual
Several major characteristics of the draft § 316(a)
Guidance Manual will seriously impede implementation of
§ 316(a).
1. All prescribed demonstration types require data
presently unavailable to the scientific community.
2. Type 2 and Type 3 demonstrations using a thermal
tolerance matrix are unworkable. By limiting new-source
applicants to these demonstrations, the Manual effectively
forecloses consideration of less stringent effluent limitations
for new sources.
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-2-
3. Much of the required data are irrelevant to the ulti-
mate issue of whether the protection and propagation of a
balanced, indigenous population will be assured.
4. The requirement, common to all demonstration types,
for identification of species at "all trophic levels" may take
years to meet, thus making it impossible to obtain a § 316(a)
based permit before the end of 1974, or even before construc-
tion of off-stream cooling facilities must begin. Even the
relevant data requested by the Manual cannot be gathered,
processed and analyzed before the end of the year, or as in some
cases before construction must begin. Yet the Manual proposes
no way to avoid the absurd result of beginning construction
while studies are ongoing.
5. The Manual ignores a number of valid methods which
the applicant could employ to demonstrate that a balanced,
indigenous population would be protected.
6. The Manual fails to give appropriate effect to a
valid distinction which it recognizes: high versus low potential
impact of the discharge. Low potential impact should provide an
independent basis for demonstrating compliance with § 316(a)'s
test.
7. The Type 3 demonstration is completely unusable. It
is not offered as an independent alternative and is so poorly
defined that applicants will be reluctant to risk its use.
8. The Manual requires a degree of certainty beyond
that reasonably attainable on the basis of data which are, or
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are likely to become, available. The demand for scientific
certainty will negate the practical effectiveness of § 316(a).
9. The Manual imposes substantive requirements beyond
those of the statute, such as the requirements (1) to protect
species instead of populations or communities and (2) to identify
a population consistent with the restoration of the pristine
state of the water body.
10. The Manual's inapt use of scientific terminology makes
it difficult for experienced professional biologists, resource
managers and regulatory personnel to interpret.
Each of these ten deficiencies, except the tenth, is
described in more detail below. The basis for the tenth criti-
cism is,made apparent by the specific comments in Section C
of this critique.
Conclusion and Recommendation
The major flaws of the Guidance Manual make it completely
unusable. Further, biologically incorrect statements and pre-
scriptions, if followed, would result in misinformed decisions.
We strongly recommend that the draft Guidance Manual be with-
drawn from use immediately. Sufficient guidance in the criti-
cal period between now and the end of the year may be provided
in an explanation, such as the one we suggest, accompanying the
proposed regulations. If the need for additional guidance
should become apparent, a document like the draft Manual may be
prepared. However, it is imperative that any such document be
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given careful, thoughtful consideration before it is put into
actual use. The current draft Manual would benefit greatly
from more thorough consideration. Presently, it provides no
guidance on what is to be done with the applicant's data and
information once submitted. Use of this draft Manual to
determine § 316(a) applicants' rights between now and
December 31, 1974, when the bulk of existing source permits
will be issued, would substantially negate § 316(a).
B. Major Criticisms of the Draft Guidance Manual
1. Some of the data required or requested by EPA in the
Manual are presently unavailable to the scientific community.
These include:
a. Identification of protozoa, algae, fungi and
other biota (pages 14 and 19).
b. Physiological characteristics and behavioral patterns
of certain life history stages of many species, particularly
marine organisms (pages 13 and 14 - migrants).
c. Modes of reproduction as well as sites, habitats,
and environmental conditions necessary for reproduction (pages
20, ii; 26, b and thermal tolerance matrix).
d. Thermal tolerances, except for a few fresh water
fish (page 12, line 8; page 13, line 1 and 27 et seq.).
Obtaining other data could be a major undertaking for
the applicant, if, in fact, they could be collected. Before
EPA requires that the applicant gather this information, some
effort should be made to determine whether other data are
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pertinent (see 4 below) or even necessary (see 3 below). If
EPA determines these data are necessary, a demonstration type
permit should be issued to allow completion of the necessary
studies.
2. After careful consideration of EPA's proposed Type 2
demonstration presented in the Manual for 5 316(a) demonstra-
tions, we have concluded that this approach is infeasible and
unworkable. Since this is the only approach available for an
applicant trying to permit a new source or a relatively new
existing source, it is imperative that this demonstration be
abandoned or radically modified. Our criticism of the demon-
stration includes the following points:
a. A Type 2 demonstration is not allowed without
inclusion of the Thermal Tolerance Matrix. Any applicant,
therefore, who attempts a Type 2 demonstration will be required
to fill out the matrix. If it cannot, no permit may be issued.
The rest of the information required for a Type 2 demonstration
would only be useful to the Regional Administrator in attempting
to decide which representative important species should be
chosen. This would usually be done prior to field assessment
and would be of little use in determining whether a balanced,
indigenous population is protected.
b. Most of the data on the thermal tolerances of
aquatic species that are currently available in the scientific
literature regard freshwater fish species, a few invertebrates,
and very few aquatic plants. This paucity of scientific litera-
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ture has three results:
1. The Regional Administrator will not be able
to make a determination on which species, of the species
presented by the applicant, constitute species representa-
tive of the thermal tolerance of the aquatic community in
the vicinity of the discharge. Since the selection of
representative important species will usually occur prior
to the initiation of field studies (at least for new
sources), the Regional Administrator will only be able
to use published literature to guide him in his choice of
representative species. This prejudices the use of any
species that is not included in the published literature.
2. In estuarine or marine situations or in
other situations where thermal tolerances of the species
living in the aquatic community are not known, neither
the Regional Administrator nor the applicant will be able
to determine which species will be chosen and these species
may or may not represent the thermal tolerance of the
aquatic community.
3. The applicant will be unable to fill out por-
tions of the Thermal Tolerance Matrix without first doing
the necessary laboratory and field experiments to determine
the thermal tolerances of the species chosen by the Regional
Administrator. In this case, selection of the representa-
tive important species could become part of the applicant's
"burden of proof." After completing the studies indicating
the thermal tolerances, the applicant would also be re-
quired to show that the species chosen by the Regional
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Administrator are actually representative of the thermal
tolerance of the aquatic community. The applicant could
therefore fail in his demonstration Type 2 because of a
poor selection of representative important species. No
rational applicant would take this chance.
c. The data requested in the thermal tolerance matrix
are inadequate to show the effects of thermal discharges on
representative important species of the aquatic community re-
siding in the immediate discharge area. Since the thermal
tolerance matrix was developed for freshwater fish, it should be
used only for these species. It is irrelevant to request that
the applicant provide data on the reproductive seasons (or date)
of phytoplankton, zooplankton, benthos and certain fish species
which spawn more than once each year. Many of these species
apparently spawn or reproduce over a broad range of temperatures.
Furthermore, as stated by EPA in the Proposed Water Quality
Criteria, Vol. 1, page 161, most freshwater fish species spawn
when certain temperatures are reached in the spring and the
dates on which these temperatures are reached may vary up to as
much as 60 days, depending on the conditions of the previous
winter. It is therefore illogical to assign fish species a
spawning date rather than a spawning temperature. The real
question to be answered by the applicant should be: what are
the impacts of premature spawning in the immediate discharge
area in terms of survival .of the young fish? If the applicant
is ultimately assigned temperatures which are not to be exceeded
on certain dates, power plants will shut down following warm
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-8-
winters and be able to exceed any rational thermal standards
following cold winters.
d. The scientific basis for EPA's calculation of
maximum weekly temperatures is open to serious question and
at best represents only an untested theory. EPA's calcula-
tion of the maximum permissible temperature for growth is
calculated as 2° C. less than the temperature at which opti-
mum growth occurs plus one-third of the difference between
optimum growth and the ultimate incipient lethal temperature
(UILT). EPA ignores the observation that the UILT would be
exceeded in a discharge at most for one or two months out of
each year. Most fish would avoid such temperatures by moving
to other areas of the water body if these were available. If
this movement does occur, EPA has not addressed the signifi-
cance of this phenomenon except to say that a certain area of
habitat is lost. The question of whether a balanced indige-
nous population is protected has not been addressed. Nor has
EPA addressed two additional questions:
1. Whether the optimum growth temperature
which is preferred by the fish species will be
selected by them from a temperature gradient, or
2. Whether a population confined to its
optimum growth temperature would actually be a
balanced, indigenous fish population.
EPA has also ignored the observation that most fish grow in
the spring and fall and growth slows during the summertime
under natural conditions. Fishes have evolved under these
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circumstances; in fact, no studies have been conducted in which
populations were held at their optimum growth temperature
throughout their entire life cycles. These studies could indi-
cate that fish species are actually harmed by being held at
a constant optimum growth temperature.
e. Calculations of EPA's maximum permissible weekly
temperature for growth also leads to some interesting anomalies.
Many natural water bodies naturally exceed EPA's calculated
temperatures. These populations are apparently protected and
propagate as a balanced, indigenous fish population. It should
also be noted that many natural waters containing balanced
fish populations never reach the optimum growth temperature
or the maximum permissible weekly temperature listed by EPA.
This implies that certain ecosystems would benefit from the
addition of heat. This raises the question of racial or intra-
specific differences in fish populations. These differences^
•
are particularly evident as differences from north to south in
the United States. Each applicant therefore would be required
to determine the UILT and the optimum growth temperature for
the fish residing in some uninfluenced portion of their particu-
lar water body. This also raises the question of whether
adaptation by certain populations has already occurred in
thermally influenced situations. If this has occurred, these
populations may well represent a balanced indigenous fish popula-
tion which is protected and is propagating.
f. Even assuming that EPA's theoretical calculation
is correct, it cannot be assumed that laboratory data reflect
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circumstances occurring in the water body influenced by thermal
discharges. This raises the whole question of applicability
of laboratory studies to the field. Thermal preference studies
have usually indicated that the laboratory thermal preference
differs from field selected temperatures, implying that other
variables may become more important than temperature. It is
also evident that thermal preferences, at least, change with
the size of the fish. If this is also true of optimum growth
temperatures and ultimate incipient lethal temperatures, the
applicant would be put in a position of selecting a particular
size class of a species to be protected. This would, of course,
violate the criterion of balance, since one age class would be
chosen over another.
g. In using the thermal tolerance matrix, EPA has
also ignored the question of whether discharges exceeding the
maximum permissible weekly temperature do in fact affect the
protection and propagation of a balanced, indigenous fish popula-
tion. Innumerable studies have shown that most species of
fish congregate in the discharge in some seasons or months and
avoid the discharge in other months. It is not sufficient to
say that a certain acreage of water is lost during summer when
temperatures are too hot for certain species. The question
really is: what is the long-term effect on the balanced, indi-
genous fish population? Growth is a function of temperature,
but is lost growth during summer compensated for by increased
growth during other seasons of the year due to the heated
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-11-
effluent? Most studies of fish populations determine growth on
an annual basis and not monthly or weekly increments. The EPA
approach of maximum weekly permissible temperatures does not
allow for growth compensation during other seasons of the year.
This is not justified as the basis of the applicant's showing
that the balanced, indigenous fish population is protected.
3. There are three categories of new data that may impose
impossible burdens for applicants attempting to make § 316(a)
demonstrations within the time requirements set forth in the
proposed regulations. These include (a) data that are apparently
unnecessary and irrelevant, (b) data that may be necessary for
a full § 316(a) demonstration, but the collection of which
would require an extended period of time, and (c) data that
may be requested by the Regional Administrator (or Director),
that could fall into either category (a) or (b), but which
the Manual does not identify as something that could reasonably
be anticipated.
The data requirements that appear unnecessary and largely
irrelevant are numerous. Outstanding examples include the
extensive thermal tolerance matrix (page 28), detailed theoreti-
cal analyses (page 19.4(a)(1)(C)), precise, statistical defini-
tion of mixing zones (page 40), and arbitrary analyses of bio-
logical responses to mixing zones (Chapter VII, pages 41-63).
Some further data collection may reasonably be considered
necessary for a full § 316(a) demonstration, but because of the
nature of the data, it will require considerable time (years in
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-12-
some cases) to compile and interpret.
Initially, accurate verification of what are representa-
tive, important species (page 21) in a particular case, requires
an analysis of the aquatic community with data usually taken
from all seasons. Further examination of power plant effects
in terms of protection and propagation of a species may (de-
pending on the availability of data from prior studies) require
additional years of study. Where proof of the absence of prior
appreciable harm involves a relatively large water body (page
17), the study requirements may necessitate the use of trends
in populations over an extended period of time, because local
variations in species abundance may be exceedingly variable.
The Manual proposes that for Type 2 and Type 3 demonstrations
(pages 23 and 35) the Regional Administrator (or Director) may
request the applicant to provide information and data on the
selection of representative, important species, and in other
cases (such as page 24(c)(2)) additional evidence "sufficient
to enable the Regional Administrator (or Director) to make a
determination." Such an open-ended provision enabling the
imposition of unnecessarily strict data requirements will
confound rather than guide, impeding the reasonable implementa-
tion of § 316(a) exemptions.
The general solution to these problems is to limit data
submittals to those that are clearly pertinent to the determin-
ations to be made. Flexibility should be preserved for the
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applicant to substitute data as may be appropriate for a
given determination.
4. According to the Manual the applicant must determine
natural diversity at all trophic levels in order to establish
the effect of thermal effluents on biological communities.
This task cannot possibly be accomplished in a year. It would
necessitate an identification to the species level of bacteria,
fungi, protozoa, and all other microorganisms, concluding with
a total biological analysis of all taxonomic groups up through
higher vertebrates. In some locations it could be achieved in
several years of intensive field and laboratory studies involv-
ing literally dozens of specialists in taxonomy, physiology,
microbiology and ichthyology and costing millions of dollars.
In other cases, it cannot be done in a lifetime.
The Manual also requires, for all demonstration types,
an identification of species and an indication of their abundance.
Four to six months would be required to design the studies and
order equipment and supplies. A minimum of one year's field
data would be necessary so that all four seasons would be included
and an additional six months required for data processing and
report writing. Thus, a minimum of two years would be required
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for each study.
These time requirements nullify the intent of § 316(a)
since study time requirements are essentially the same as
deadlines for installing cooling towers. As a result the
applicant would be caught in the paradox of demonstrating
the appropriateness of once through cooling after (out of
necessary time requirements) he has ordered cooling towers.
Therefore, the Manual should have provisions for temporary
study permits based on alternate information requirements, so
that rational decisions concerning the installation of cooling
devices can be made within a reasonable time period.
5. EPA has not discussed under any of its demonstration
types a number of valid, reliable methods that an applicant
could use to show that a balanced, indigenous population is
protected. These include:
a. Pre- and post-operational studies;
b. Comparisons of thermally affected and unaffected
populations;
c. Reviews of previously completed studies which
discuss similar species or habitats as they are
affected by thermal discharges;
d. Biological modeling studies;
e. Dynamics of thermally influenced populations
including growth, energetics, reproduction, and
survival; and
f. Field studies of distributional changes in re-
sponse to thermal inputs.
Since these methods are not mentioned in the Manual, an
applicant's demonstration using these types of information may
be prejudiced. Generally, the administration of
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§ 316(a) should allow demonstrations to be based on any valid
and reliable evidence available to the applicant. The omitted
methods enumerated have been included in our proposed changes
to the demonstration types available to the applicant.
6. EPA designation of a "high" and "low" potential impact
discharge is of sufficient importance to warrant separation into
two distinct demonstration types. The low potential impact
should be elevated to a separate Type 4 demonstration for either
existing or new sources. A Type 4 demonstration should yield a
long-term permit conditioned on limited biological studies to
verify the Regional Administrator's decision of low impact.
The Type 4 demonstration which we recommend will require minimal
data from the applicant and should avoid larger expensive long-
term field studies. The Regional Administrator may conclude
that a discharge has a low potential impact if:
a. The thermal plume is relatively small;
b. Zones of passage are available;
c. The discharge does not significantly adversely
affect benthic< or shoreline organisms; or
d. That the population residing in the immediate
discharge area has not been or will not be
significantly affected by the discharge.
7. The Type 3 demonstration offered by the Manual has
no practical value as a separate demonstration because:
(a) all data requirements for Type 2 are required in Type 3
(thus, failure on a Type 2 demonstration would automatically
result in failure on a Type 3); and (b) the additional data
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requirements which may be requested by the Regional Adminis-
trator would leave the applicant in doubt as to the quality
and quantity of data he should collect. We believe that to
have any practical value, a general residual demonstration
must provide the applicant sufficient flexibility to base his
demonstration on any reliable, probative information available.
This was apparently the intent of EPA's proposed 40 C.F.R.
§ 122.8(b), but that intent would be completely nullified
by the Manual.
8. The Manual requires the applicant, in effect, to prove
its case to a degree of certainty that is not attainable in the
real world. There will never be absolute certainty about the
effects of external stresses on aquatic communities. All that
can reasonably be expected is that the applicant demonstrate
reasonable assurance of protection and propagation by
substantial evidence.
Professional biologists and resource management specialists
typically make decisions on the basis of information different
in type and quantity from that required by the draft Guidance
Manual. Section 316(a) determinations should be based on
the type and quantity of information ordinarily needed for
resource management decisions.
9. The draft Manual goes beyond the statutory substantive
standards in three respects. First, the Manual focuses on
and requires protection of species. Section 316(a), however,
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is concerned with populations or communities; there is no indi-
cation in the statute that all species found in an aquatic com-
munity must be protected.
Second, the Manual's requirements reach all trophic levels.
Section 316(a), however, speaks only of shellfish, fish and
wildlife. If balanced, indigenous populations of shellfish,
fish and wildlife exist in the water body, then whatever
other elements of the ecosystem are necessary to support those
populations can be presumed to be present in sufficient
quantity.
Third, the statutory phrase "balanced, indigenous popula-
tion" implies that only reasonable maintenance of the aquatic
community need be demonstrated. The Manual distorts this term
by imposing a requirement that the population of interest must
be consistent with the restoration of the biological integrity
of the affected water. This requirement is inconsistent with
the proposed § 316(a) regulations' recognition that applicants
need not show protection of some former population which may have
existed in a pristine environment.
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SPECIFIC COMMENTS ON BIOLOGICAL
ASPECTS OF THE DRAFT GUIDANCE MANUAL
The following comments on the § 316(a) Manual deal
specifically with problems of terminology and data requirements
of the Manual. Subheadings parallel those of the Manual
and page references are to those of the April 18, 1974
draft.
A. Introduction
Page 4, para 1: The statement that "the basis for
modification (thermal effluent limitations) is a case-by-case
evaluation of the water quality impact of the individual
discharge" should be clarified to insure that a multiple
discharge plant would be considered a single discharge for
demonstration purposes. A separate discharge evaluation may
be appropriate where there is substantial separation between
discharges, but the general guidance should be site-oriented.
Page 4, para 3: The paragraph states that the "manual
describes the minimum information requirements . . . (and)
while these requirements should normally be met, the Regional
Administrator (or Director) may modify or expand any require-
ment as warranted by the circumstances of the particular
case." The structure of the paragraph and the emphasis on
modifying or expanding requirements leads to an interpretation
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that any diminution in requirements would not be acceptable.
This bias is not consistent with concept of a "guideline"
document.
Page 5, para 3: Delete entire paragraph due to its
procedural basis which is best described in procedural
regulations elsewhere.
Page 6, para 1: "Time may not allow for another long-
term study ... If this is the case . . . then there may be
no other choice but to require a closed cooling system."
The Manual presents the applicant a Hobson's choice.
Time is insufficient to develop the unrealistic and unavail-
able data base that would be required. In order to provide
such information on all modes of contemplated discharge
I
affecting the protection and propagation of wildlife, the
applicant would have to make an exhaustive study of the
reaction of wildlife to each separate discharge type. Unless
the applicant presently has the required data on hand, the
time factor precludes further biological field studies, and
closed-cycle cooling would be obligatory. The best resolution
to this dilemma is a major reduction in the quantity of field
data (and the use of case histories and prototype studies of
similar power-plant/biological systems) required to satisfy
§ 316(a) demonstrations. Without such a reduction of data
base volume, modification of effluent requirements under
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§ 316(a) would be impossible for most power plants.
B. Types of Demonstrations
Page 6, Type 2: For Type 1 demonstration, the Regional
Administrator may issue a permit for continuation of
discharge without further investigation. The manual will
be improved by providing the RA with the same authority for
Type 2 or 3 demonstrations as are provided for Type 1
demonstrations.
Page 7, new para 2: Low-potential impact discharge:
This concept should be elevated to an independent method of
demonstrating compliance. The Regional Administrator (or
Director) would be directed to determine, on a case-by-case
basis, that an existing discharge has a low potential impact
if the applicant shows:
a. That the thermal plume comprises a relatively
small percentage of the total cross-section of
a water body, zone of passage or stream flow;
and
b. That the discharge results in a plume which does
no>t have a significant adverse impact on benthic
or shoreline populations.
Once these two determinations were made, alternative effluent
limitations could be established without additional
preliminary studies.
Page 7, new para 3: The concurrent demonstration
requirement flatly contradicts the proposed regulations and
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removes any advantage or reality of separate demonstration
types. Further, if Type 3 is to be-available for those
who have failed on a Type 1 or 2, it is obvious that
additional Type 3 information cannot be presented concurrently
with the other. This abbreviation of the demonstration
opportunities available penalizes the applicant for the
Agency's delay in producing guidelines and beginning to
implement the NPDES.
Page 8, Sentence 3: Delete entirely. This sentence
suggests that all the data specified in the Manual are
mandatory. The guidance Manual, if it is to be that, should
identify the types of information that may be submitted and
considered. Exactly what information is "necessary" will
vary from case to case.
Page 9, (1) Balanced, indigenous population: The
definition includes the phrase "... diversity at all
trophic levels ..." This is inaccurate in the biologic
sense because communities are very often dominated totally
by one or two species, such as the benthic molluscan communities
of Tellina, Crassostrea on oyster bars or even a single
species of Nereis polychaete in a salt-marsh community.
Further, while such communities have common characteristics,
they vary from situation to situation. Turning to the phrase
"... non-domination of pollution tolerant species," aside
from primary producers found inhabiting hot springs, which
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is a unique natural habitat, the microflora at the species
level has not yet been documented in scientific literature
as to being either "thermal pollution tolerant" or "non-
thermal pollution tolerant." Similar data is also lacking
with respect to both primary and secondary consumers. Further,
practically all rivers and bays in the United States are
technically "polluted" to a degree and many already include
species whose "presence or abundance is attributable to the
introduction of pollutants." In short, a balanced, indigenous
population does not typically include the characteristics
listed (line 11).
Thus, the definition on page 9 should be changed to
include the qualifier "may" as expressed above.
Page 10, para 1, line 2: "The following descriptions
all characterize such population."
This statement is biologically incorrect and at the
minimum, the qualifier "may" should be substituted for "all."
Many systems exist where stratification, periodicity and
succession do not occur. The definition of a climax com-
munity relies upon the stability rather than the succession
of that community. Diversity at all trophic levels rarely occurs
in all biological communities which are not self-perpetuating;
for instance, the effect of aquatic rooted vegetation is to
allow for -the settling of debris and suspended matter to the
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point where the substrate becomes drier, more elevated, and
np longer suitable for aquatic plants.
Therefore, the following deletions are recommended:
a. Delete Section (a), page 10. The Manual's frequent
use of such non-specific phraseology from the
glossaries of biological texts precludes practical
application to the ecological concept of communities
and to anticipated natural conditions.
b. Delete Section (b), page 10. Not only do all
trophic levels seldom occur in any one community,
but this statement also eliminates the possibility
of natural shifts in food chains. A bayou may
possess only catfish or a shallow marsh only
Fundulus; therefore, no diversity at that trophic
level is exhibited.
c. Delete Section (c), page 10. Biological communities
are not always self-perpetuating. If each
community perpetuated itself, the transitions would
not be possible.
d. Delete Section (d), page 10. This statement is
incorrect in biologic terms. Energy production
may be absent in a specific community, yet the
community thrives due to energy transport into
that system from outside primary producers. Also,
not every community is characterized by primary,
secondary, and tertiary consumers.
In summary, the definition of a "balanced, indigenous
population," as presented on page 10, is vague, misleading,
and scientifically unsupportable. A proper and reasonable
description of what constitutes such a population should
take into account (1) the possible existence of pollution-
tolerant species, particularly where "pollution-tolerant" is
thought of solely in terms of warmer water species, some of
which may have been deliberately introduced through stocking,
and (2) the expected changes in species diversity as water
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quality improves due to implementation of FWPCA.
We recommend that, if the Manual is retained or
rewritten, the following definition be adopted.
The balanced, indigenous population may include species
not historically native to the area which:
a. Result from major modifications to the water body
(such as hydroelectric dams) or to the contiguous
land area (such as deforestation attributable to
urban or agricultural development) which cannot
reasonably be removed or altered.
b. Result from management intent, such as deliberate
introduction in connection with a wildlife management
program.
c. Are species or communities whose value is primarily
scientific or aesthetic.
Thus, it is not necessary to show that the applicant's
discharge is compatible with a population which may have
existed in a pristine environment but which has not persisted.
i i
However, a "balanced, indigenous population" may not include:
a. Species of no appreciable value which were not part
of the normal complement of aquatic biota indigenous
to the region and which result from the introduction
of thermal discharges.
b. Species introduced and maintained in residence as a
result of habitat destruction by man's activities
(for example, dredging) except where habitat changes
are irreversible.
c. Species introduced by human activities (such as
aquaculture) which colonize or establish themselves
at the expense of endemic communities and which
are beyond the limit of management intent.
C. Demonstration Type 1
Page 17: The title should read "Absence of Prior
Appreciable Harm" rather than "Absense of Prior Applicable
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-25-
Harm".
Page 17. For clarity, the last portion of the second
paragraph should be changed to read: "... discharge on
populations in the entire water body. Lack of appreciable
harm may not be dependent upon excluding from consideration
a portion of the waters for a mixing zone. Rather, whether
there is appreciable harm should be determined by consideration
of the overall effect in relation to the entire population
within the water body. Harm observed within a mixing zone
may or may not be appreciable in the context of the entire
water body."
Page 18, line 7. Since some of the data requirements
presented in Chapter VI may or may not be germaine to
demonstrating appreciable harm, the phrase "... engineering
and hydrologic data described in Chapter VI . . ." should be
deleted. There is no value in such a modeling exercise for
the demonstration of no prior appreciable harm.
Page 19, line 3. This should be changed to read, "Copies
of all water quality-related communications not already part
of the public record ..."
Page 19, (4)(B). The phrase "... just outside the
immediate discharge area . . ."is unclear. One cannot tell
whether the "discharge area" denotes an upstream control
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station or an area sufficiently downstream. In the latter
instance, this poses serious problems when other industrial
effluents enter the "immediate discharge area". In such
cases only an upstream control would be appropriate.
Also, the phrase "transitional biota regime" is confusing.
Page 20 (ii). The Manual's requirement for identification
of reproductive dates of fish and shellfish species is
scientifically misleading. Scientific investigation has
established that the reproductive periods of fish, shellfish,
and other aquatic organisms are determined by thermal influence
(and photoperiod) and not by the calendar. Black Crappie,
for example, may spawn under natural conditions as early as
late March or as late as early May, depending upon when
ambient conditions result in the maintenance of spawning
temperatures for a sufficient period to stimulate reproduction.
Page 20 (iii). The term "principal benthic forms" is
not related to reproduction, nursery areas and migration
routes.
D. Demonstration Type 2: Protection of Representative Important
Species
Page 22, (iv): This definition of a sensitive species
contradicts the one presented on page 13. As indicated at
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-27-
page 22, sensitive species should not be considered unless
their continued existence in the state are or are likely to
be threatened.
Further, insufficient information exists in the
literature at the primary producer and consumer levels to
justify the designation "most sensitive species."
Page 27 6(a). The Manual proposes the use of thermal
tolerance matrix (Table A) for the purpose of demonstrating
effect of thermal conditions on aquatic life. The matrix,
as presented, is limiting in data coverage and scope of
biological effect and does not allow for any sort of
comprehensive evaluation of the effect of temperature on
aquatic life. Much of the data which is proposed for the
matrix (Tables 1 & 2, appendix A) is of laboratory origin
and has little or no support or verification from field
experience.
The compilation of temperature tolerance data for any
species is a combined product of at least two types of
scientific experience in the area. The first represents
the results of prime temperature research procedures in a
laboratory atmosphere with all the combined constraints and
protocols that experimental laboratory procedures call for.
These examination and test conditions are highly artificial
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-28-
and results usually incorporate the combined stress of the
experimental regime as well as the manipulated experimental
temperatures. The second type of experience relevant to thermal
tolerance is that which is gained through examination
of temperal-spacial population distribution in response to
thermal discharges from one or more point sources. Such
field examinations are open to the difficulties of understanding
all of the combined factors that are biologically integrated
by individual fish and individual populations with the result
that distributions of any species around the thermal source
leaves considerable number of uncertainties as to the
specific time-temperature sensitivities that would occur
were the animal to be unable to escape from unfavorable
circumstances. That is, in the open natural laboratory of
the environment the option of behavioral mitigation of thermal
stress through escape and transient movement into and out
of thermal plumes is always available. In situ bioassay in
which caged animals are placed in such field or open surface
water experimental regimes does not permit escape as a viable
biological mechanism to favoring survival. Hence such bio-
assay conditions are not much different from those that the
laboratory imposes through caged and captured exposures. The
reconciliation of the inherent conflicts in the numbers that
have been reported at temperatures that have been reported
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-29-
to be futile, or at best unfavorable for the growth and survival
of individual species populations of fish,is a very
difficult task requiring highly skilled measurements in
both laboratory and natural environmental regime. These
types of reconciliations must be made if an adequate
understanding of the implications of thermal discharges of
any kind are to be made for the purpose of reducing and
minimizing stresses on aquatic populations from thermal
generating stations. These reconciliations are not currently
available and the generation of a host of data involving
hundreds of potential test species will require a very
large, highly skilled scientific staff, large fundings and
considerable amounts of time. While these efforts are
warranted on a limited basis, a total dependence on the
i
results of such matrices of time and temperature exposures
for all of the kinds of aquatic organisms that are currently
residing in areas under thermal effluent influence will not
be achieved in the immediate months and years in which
I
these data are needed. Hence it is our recommendation that
before prescribing elaborate experimental laboratory proto-
cols involving complex experimental matrices of temperature,
time and other stressing factors, that professional examination
of the existing literature involving both laboratory and field
conditions be made. Only after the assurance can be gained that
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-30-
experimental laboratory data is verified by field observa-
tions should it be used. However, a total dependence on this
unverified laboratory data is not in the best interest of the
management of natural resources.
For this reason applications of the matrix approach
as described in the E.P.A. document will not supply the
Regional Administrator (or Director) and the permittee with
the information required to assure the protection of a
balanced indigenous population of fish, shellfish and
wildlife. In the final analysis the meaningful information
must be the result of laboratory research complemented by
field verification.
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-31-
PART II PHYSICAL ASPECTS
RECOMMENDED CHANGES TO THE PHYSICAL ASPECTS
SECTIONS OF THE "PROPOSED GUIDELINES FOR ADMINISTRATION
OF THE 316(a) REGULATIONS" (EPA -- 4/18/74)
A. General Impact of Manual if Applied as Presently Written
This section includes a summary of the major effects of
the Guidance Manual if Chapter VI (Engineering and Hydrologic
Data), Chapter VII (Mixing Zone Guidelines), and Chapter VIII
(Thermal Load Analyses) are implemented as presently written.
Section II makes specific recommendations for changing the
physical aspects sections of the Guidance Manual with the
objective of making them as rational and workable as possible.
Unfortunately, the physical aspects sections of the manual
pose many unreasonable constraints, and securing 316(a) excep-
tions would be nearly impossible. At best, a 3l6(a) determi-
nation would be costly, cumbersome, and technically unsound.
Following are some examples of serious inadequacies:
a. technical errors (e.g., p. 83, Equation T = (T~ + E) /2
is incorrect, see Ref. 3),
b. gross omissions (e.g., p. 38, (c), omits ocean receiving
waters),
c. naive assumptions (e.g., p. 47/48, (f), assumes equal
biologic value),
d. over-generalizations (e.g., p. 46 (iv), rapid mixing
not always desirable),
e. unrealistic specifications (e.g., p. 39 (c) (4), 10
years data seldom available; p. 58, requirement for
extremely unrealistic diffusers),
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-32-
f. internal inconsistencies (e.g., p. 39, (c) vs. (d),
weekly vs. monthly data, and
g. ambiguous language (e.g., p. 38, Table C, gross vs.
net water uses).
These problem areas, as further exemplified by the specific^
recommendations contained in the next section, render the entire
document almost unsalvageable, i.e., the time and effort re-
quired to start anew may not exceed those required to salvage
the present draft. Furthermore, the lack of uniform coverage
of different types of receiving water situations, coupled with
the lack of distinction (for any one type) between those
aspects of data acquisition and analyses that are essential and
those that are merely informative, indicate a profound lack
of appreciation of the enormity of the efforts involved in
providing all of the requested information for all sites within
the limited time available.
Effects of Chapter VI - Engineering and Hydrologic Data
The major effects of this Chapter are to require that a
vast amount of data be submitted in connection with a 316(a)
demonstration. However, much of the data being requested, while
having general interest aspects, is not relevant to the 316(a)
demonstration. The impact of the Chapter is significant in
terms of manpower and cost, particularly as it relates to pro-
viding data on ''-thermal plume characteristics." Such character-
istics depend on field surveys, mathematical models (computer
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-33-
models), and physical models.
Cost of Data — Following are approximate typical costs for
the acquisition, analysis, and reporting of field data and
the application of computer (math) and physical models:
Boat survey for 3-dimensional temp. -- $10,000 per
survey.
Quantitative Aerial infrared survey -- $60,000-75,000
per survey, (assumes 4 IR runs per survey).
Physical Model studies -- $200,000 - $6,000.000.
Computer Model studies -- $25,000-50,000 (application
only) .
$50,000-100,000 (application
and development).
Permanent monitors (temp, and current) -- $15,000-20,000
per monitor.
Time Needed
Field surveys must have seasonal data over one year.
Boat survey -- 35 man weeks per survey.
Physical model study -- 1 year.
Computer model study — 3 months (application only)
1 year (application and development)
Manpower Needed
Following are roughly the number of available organiza-
tions/ consultants presently doing this type of work. The
lead time needed for new firms to develop these capabilities
is at least 1-2 years.
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-34-
a. There are less than 6 aerial infrared sensing firms
having the capability to measure and analyze thermal
plume data.
b. Less than 6 firms providing permanent monitoring
instrumentation.
c. There are about 12-15 physical modeling consultants.
Each can handle no more than one study per year.
d. 10-20 computer modeling consultants. Three to five
projects at a time per consultant.
Effects of Chapter VII - Mixing Zone Guidelines
Perhaps the greatest potential problem area in the
guidance manual is the treatment of mixing zones. The physi-
cal sizes and shapes of mixing zones for fresh water are dis-
cussed only in vague qualitative terms. The size and shape
of the mixing zone for marine water is defined in terms of
the 2° F isotherm, with the net result being the requirement
for highly impractical and prohibitively costly offshore
diffusers. The total impact of this Chapter, however, is
really unknown, because of the vagueness and uncertainty which
permeates it. Certainly, the Chapter as presently written does
not provide rational guidance.
Effects of Chapter VIII - Thermal Load Analyses
This Chapter is also couched in vague and uncertain
terms. It appears to have been hurriedly pieced together
by using sections from previous EPA publications. The thermal
load analyses presented for rivers and lakes (the river analysis
in particular) are severely limited in their application to
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-35-
actual situations because of gross simplifications in the
technical approaches. There are probably no more than three
or four river plants in the U.S. for which even very approxi-
mative load analyses could be made using the approach in
the guidance manual. While rivers and lakes are handled
inadequately, estuaries and oceans are ignored completely.
All receiving water bodies should be treated in a consistent
manner.
The major effect of this chapter would be to provide
erroneous or inadequate guidance to the EPA personnel who
are processing 316(a) applications.
B. Specific Recommended Changes
We believe that the physical aspects sections are so
technically deficient that they are beyond salvaging. There-
fore, we recommend that the entire section be scuttled. Though
we believe its retention ill-advised, we offer the following
recommendations as the minimum acceptable changes if it is
retained.
1. Chapter VI Engineering and Hydrological Data
page 36 (b) Plant Operating Data.
a. Cooling Water Flow
Table B, Cooling Water Characteristics, serves no
i
useful purpose as it stands. The values of various parameters
at partial loads can be calculated from pump and condenser
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-36-
characteristic curves, but the results have no relevance to
316(a) determinations. The only useful data which might be
furnished at this point are design data for individual units
that use a common intake and discharge.
Table B should be deleted and replaced as follows:
Table B
Design Cooling Water Characteristics, by Unit and Station
(Full Load)
Unit
a
b
'•
•
•
n
Station
Rate of Cooling
Water Flow
Condenser
& T
Mean Discharge
Velocity
NA
NA
•
•
•
NA
Section VI(b) as written in the Draft suggests that the
authors are interested in temperature changes that result from
time variations in the power output of the units, which in
turn, changes the rate of heat discharge. The operating cycle
of any generating unit is determined on a real-time basis by
the system load dispatcher. Even base load plants are controlled
on a system basis. Predictions of expected operations for new
plants or the operating histories of existing plants would have
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-37-
no apparent value in a 316(a) determination.
Assuming cold shock is the concern, one analyzes the
effect of a sudden unit or station shutdown. This, Part VI
(b)(3) should be deleted because it has no real meaning.
Part VI(b)(2) deals with the time-temperature history of
a typical volume of water as it passes through the plant
cooling system. These data are relevant to the potential
mortality of entrained organisms, but this paragraph should
be reworded as follows:
(2) Submit a time-temperature profile of a
volume of water as it passes through the plant
cooling system. For each unit use design power
level and plot temperature on the ordinate and
time on the abscissa. The graph should indicate
the water temperature relative to an ambient inlet
temperature from the time it passes through the
cooling system until its return to ambient tempera-
ture.
Table C apparently refers only to fresh water sites. For
a once-through system, all plant-rejected heat is ultimately
dissipated to the atmosphere. The breakdown between convective,
radiative and evaporative heat transfer mechanisms vary according
to meteorological conditions. However, for estimating purposes,
approximately 40-50 percent of the reject heat is dissipated
by evaporation during winter months and about 60-70 percent is
dissipated by evaporation during summer months.
Therefore, Table C should be deleted and Part VI(b)(4)
should read:
(4) For each unit, estimate the consumptive
water use. State the assumptions used. Provide
these data for the year of operation reported in
FPC ___^_ for the year 197 . (Use the same year
as required for 304 classification purposes.)
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-38-
Chapter VI, para (c), page 38: Hydrologic Information
Change the first sentence to read:
Flow: Provide the information called for in para-
graph (i), (ii), (iii) or (iv), as applicable to
the site, using existing data augmented as needed
by site specific studies:
Reason for recommended change:
Since large amounts of data are being requested, it should
be emphasized that existing data, when available, can be used
to the greatest degree possible.
Add under "Flow":
(iv) Oceans: tidal heights and qualitative dis-
cussion of the site's flushing characteristics.
Reason for recommended change:
Oceans have been ignored in the Guidance Manual, but should
not be.
Para (c)(2), page 38:
Add:
(iv) Oceans: Seasonal changes in current speed
and direction.
Reason for recommended change:
Same as preceding reason.
Para (c)(4), page 39:
Change to read:
(4) Tabulate or illustrate ambient temperatures
of the receiving waters for the preceding 10
years to the extent published data exists.
Reason for recommended change:
Giving "weekly means and extremes" does not provide infor-
mation relevant to a 316(a) determination. The second sentence
was deleted because its meaning is not clear.
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-39-
Para (c)(5), page 39:
Delete the words " . . . at 0.5m interval . . . ."
Reason:
Water depth contour intervals are site specific. Also,
a 0.5m interval is unduly restrictive for any site.
Para (d), page 39: Meteorological Data:
Delete this paragraph.
Reason:
The acquisition of meteorological data is not relevant to
a Section 316(a) determination.
Para (f)(l), page 40: Thermal Plume Characteristics:
Replace this paragraph with the following:
Provide the following information on thermal plume
characteristics:
Existing Plants (Measured data)
(1) Scale drawings showing typical surface iso-
therms at specific temperature increases
(such as 3°C., 5°C., etc.). Specify the defi-
nition of ambient temperature used in the study
which, when subtracted from the absolute mea-
sured temperatures, yields the above tempera-
ture increases. Discuss the implications of
seasonal variations and extreme hydrological
conditions.
(2) Scale drawings showing the above isotherms in
the vertical water column along two transects
of the plume.
New Plants - (Predicted data)
Scale drawings showing the predicted surface and
subsurface isotherms obtained using physical or
mathematical models. Only the incremental plant-
induced temperature increases are shown; ambient
temperatures are not predicted.
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-40-
Reason:
The data required by para (f), as presently written, are
much more extensive than those actually needed to properly
delineate the thermal plume.
The ranges of ambient variations in the natural environ-
ment can be large, even for a period of one day. For example,
natural daily changes of 3-5°C. have been frequently observed
in near shore coastal waters. Therefore, the time and space
scales, and temperature intervals, when measuring temperatures
in the environment are site dependent. These parameters should
not be arbitrarily set, as in paragraph (f), but should be
flexible to be consistent with ambient variations.
It would also be impossible to accurately define an actual
thermal plume's configuration for various percentages of time
because of the multiple dependent joint probabilities of the
various parameters (time, flow, meteorology, etc.) which bear
on ambient temperature variations. The temperature measured
in a real body of water varies from point-to-point and is not
i.
constant with time. Experienced investigators who have actually
performed field studies recognize that establishing a workable
definition of "ambient temperature," and actually measuring it,
is critical to any plume study. For example, changing the
ambient temperature by only 1°F. can change the areas enclosed
by lower level (say 2°F.) surface isotherms by a factor of five.
For this reason, plume studies and the mixing zone concept, al-
though extremely useful for the purposes of design and evalua-
tion, have never proven usable as a compliance tool if based
on low temperature increase levels.
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-41-
Paragraph (F)(2), page 40:
Delete this paragraph.
Reason:
Discussing seasonal variations adequately covers extreme
plume configurations. Variations attributable to variable
i
climate conditions would be highly speculative, if even possible
to analyze.
C. Chapter VII Mixing Zone Guidelines
(2) Fresh Water
(c) General Principles
It is popular to say that the permissible size of a mixing
i
zone is related to the acceptable amount of biological damage
(page 43). However, to date, few (if any) mixing zone criteria
have ever actually been set on this basis.
The theoretical arguments proposed in this chapter and the
appendix are untested and naive. They have not been published
in the scientific literature in the sense that they are proposed
to be used and have never been subject to critical review by
competent authorities.
Their inclusion in a draft manual at a point in time when
Regional Administrators have little choice but to use whatever
guidance they can find, leaves no time for such review. There-
fore, they should be deleted from the proposed Guidance Manual.
VII(2)(c)(iv) Shape:
These two paragraphs are not logical, except for the second
sentence of the first paragraph: "Actual plumes are not fixed
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-42-
in either size or shape and therefore cannot be used as
boundaries."
The rest of the discussion about the merits of circular
mixing zones and avoidance of shore-hugging plumes is naive.
The final sentence, implying helpful impact on site selection,
is self-serving and meaningless. These paragraphs should be
deleted.
(2) Mixing Zone Guidelines - Fresh Water
(f) Total Biologic[al] Value, page 47
It is recommended that the first sentence in this section
should be retained, but that the entire remainder of Section
(f) from "A relative biologic value for the various zones is
needed . . . ."to the end of Section (f) on page 48, should
be deleted. There is no existing generally acceptable basis
for assigning relative biological values to different biologi-
cal zones in such a way as to "allow Regional Administrators
to encourage dischargers to locate in areas least likely to
be damaged" any differently than by merely identifying those
zones that are notably more important than others (without
assigning arbitrary values).
(g) Level of Protection, page 48
This entire section, which depends on Section (f), should
be deleted for the same reason.
(h) Allocation Alternatives, page 49
Similarly, this entire section should be deleted, through
page 56.
(3) Mixing Zone Guidelines - Marine Water
Replace the entire section on pages 57 and 58 with the
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-43-
following:
(3) Mixing Zone Guidelines - Marine Waters
Delineation of marine water mixing zones must
take into consideration biological and socio-eco-
nomic factors which are highly site specific. Also,
the variety of hydrologic situations found in ocean
and estuary environments logically require different
types of mixing zones. The natural fluctuations in
ambient temperatures at different locations in these
environments are reason enough for a mixing zone at
one site to be significantly different from that at
another. Consequently, specific numerical criteria
for marine water mixing zones should be defined on
a case-by-case basis taking into account specific
regional differences.
Reason:
The Guidance Manual recognizes (page 41) that "the charac-
teristics of an acceptable mixing zone vary according to loca-
tion, and the specific determination must be made on a case-by-
case basis." In addition, the EPA's Criteria for Water Quality
(October 1973) states that Regional Administrators will have
policy guidelines which "include provisions for waters to be
exempted from specific criteria on a case-by-case basis for
specified periods when naturally occurring conditions exceed
limits of the EPA criteria or other extenuating conditions pre-
vail to warrant such exemptions." (page 17.)
The specific mixing zone criteria enumerated on pages
57 and 58 are not at all consistent with the more rational
"case-by-case" approach previously taken by the EPA as indicated
by the above quotations. Therefore, it would be appropriate
to recognize this by replacing the specific criteria on pages
57 and 58 with the above language which allows a more rational,
flexible approach.
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-44-
To illustrate the unreasonable limitations imposed by
the criteria on pages 57 and 58, it is pertinent to examine
the types of diffusers which would be needed to meet the criterion
of paragraph (c) on page 58. The thrust of this "criterion"
is that "an acceptable volume to surface area ratio will be
approached when the slack water maximum horizontal dimension
enclosed within the 2°F. isotherm does not exceed the depth
of the zone." Letting L = horizontal dimension and H = depth
of zone, the criterion can be stated as L/IK'I. To limit the
surface temperature increase to 2°F., a long diffuser in
shallow water (say 50-70 feet) could be used or a shorter dif-
fuser in deep water (say greater than 300 feet) could be used.
It is evident that the diffuser length must be less than its
depth to satisfy the above criterion. The "criterion,"
therefore, is forcing the use of diffusers in deep water.
As an example, diffusers for a two unit nuclear plant
(2200 MWe approx.) have been sized in an attempt to satisfy
the criterion. The EPA's "Workbook of Thermal Plume Prediction,
Volume 1, Submerged Discharge," Corvallis Oregon, August 1972,
was used in making these estimates. If the diffusers are
located in 70 feet of water, the total length would be about
1650 feet, assuming 56 near-horizontal individual 3 foot dia-
meter jets having a velocity of 10 feet/second and a temperature
increase of 18°F. This configuration results in a maximum 2°F.
isotherm at the water surface. For this case, L/H = 1650/70
(approx.), and is far from satisfying the criterion.
If the diffusers are located in 300 feet of water, a total
diffuser length of about 150 feet is obtained, assuming 20 indi-
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-45-
vidual 5 foot diameter jets having a velocity of 10 feet/second
and a temperature increase of 18°F. This configuration results
in a 2°F. isotherm at the surface which is about 300 feet in
length, and, therefore, roughly satisfies the criterion, since
L/H = 300/300 (approx.)- There are several other configurations
which could be used, but these are not significantly different
than this one.
In this example, the 300 foot depth should be viewed as a
minimum, because there are sound technical reasons which strongly
indicate that the EPA workbook underestimates plume size. How-
ever, even for 300 feet, the feasibility of constructing such
a diffuser is in question, particularly if the bottom topography
and composition require tunneling. Even assuming feasibility,
the cost of construction would be enormous, and it simply is not
a realistic alternative.
D. Chapter VIII, Thermal Load Analyses
This chapter describes several simple analytical techniques
for predicting temperature distributions in only lakes and rivers,
which receive thermal discharges. The techniques are
described to have interesting "academic" applications, but,
for the most part, are severely restricted as applied to real
situations. Predictive techniques for estuaries and oceans
are not even mentioned, even though many utilities use these
receiving water sources exclusively.
To develop realistic and accurate "thermal load analyses"
requires technical approaches which are tailored to the spe-
cific case being considered. It is not possible to develop a
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-46-
simple model or technique which is generally applicable to
a variety of situations.
Introduction, pages 59-62 :
It is recommended that this section of four pages be
deleted, and the following redraft substituted.
VIII
THERMAL LOAD ANALYSES
Introduction
For 316(a) evaluations, the major emphasis is on developing
information to support (1) assurance of the protection and
maintenance of balanced, indigenous populations (Chapters II-VI),
and (2) determination of allowable mixing zones based on bio-
logical considerations (Chapter VII). Although the "mixing
zone" approach will probably constitute the primary means of
evaluating individual thermal discharges in most cases, addi-
tional calculations of the total thermal load on a receiving
body of water are needed whenever it is possible for critical
temperature conditions in a receiving water to be caused by
the (combined) effects of one (or more) thermal discharge(s)
operating under critical hydrological, meteorological and bio-
logical conditions.
Basically, the approach in total thermal load analyses is:
(a) to access the total rate of heat contribution from all dis-
charges entering a water body, (b) to determine the volume and/
or surface area of the receiving water affected cumulatively
by these discharges, and (c) to compare possible physical changes
in the receiving water with pertinent water quality standards
and temperature criteria. The need for total thermal load cal-
culations is particularly important when considering the cases
involving (a) new sources near existing plants, or (b) reserva-
tion of heat assimilative capacity for future thermal dis-
charges.
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-47-
The following outline addresses several points to be
considered.
I. When are total thermal load analyses required?
A. When there are occurring or suspected violations to
water quality standards and/or criteria during critical condi-
tions of plant loading, receiving water flow, local meteorology,
and/or local biological activity (e.g., spawning).
B. When there are several thermal discharges in close
proximity, or where future growth plans indicate the need to
allow for installation of new facilities (power plants, steel
mills, etc.); or
i
C. When the receiving water for an individual discharge
is specifically identified as a thermally loaded water under
Section 303(d)(l)(B) and (D) of P.L. 92-500.
II. When is a total thermal load analysis adequate?
A. When the analysis has identified the extent of probable
variations of water quality standards or criteria in terms of
daily and seasonal variations of plant operations, receiving
water flows, and weather conditions; and
B. When the analysis provides sufficient detail regarding
control strategy(ies) (e.g., limits on rates of heat rejection
to be applied to each discharge) needed to achieve conformity
with water quality standards or criteria;
C. If models are used for the analysis, when the satis-
factory accuracy of these models is established.
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-48-
III. Information to be Obtained by the Applicant
A. Engineering and Hydrologic information (see Chapter VI).
B. If the applicant is the only significant thermal dis-
charger on the receiving stream where violations are suspected,
he will bear the burden of supplying the necessary data and
analyses.
C. If there are several discharges with cumulative effects,
each discharger is responsible for data collection in the
region between his neighboring discharges.
Part 2 Thermal Load Analyses - Examples pages 71-111
Since the examples quoted in this section are, for the
most part, taken directly from the Committee report:
"Technical Manual at Selected Techniques for Case-by-Case
Evaluation of Thermal Discharges" and other publications, it is
recommended that the entire section be deleted and references
to the original document(s) substituted. Supplementary reasons
for this recommendation include:
a. The 1965 methodology of Edinger and Geyer used for
analysis of rivers is out-of-date (see Ref. 3, page 103) and
contains several weak approximations (e.g., Table for B, page
78) and assumptions (e.g., constant stream width and depth,
page 79) that render its use grossly approximate and over-simpli-
fied.
b. The stochastic data of Asbury and Frigo used as a basis
for predictions of plumes in lakes was presented by the original
authors for analytical purposes only, and was never intended to
be used for predictive or regulatory purposes.
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-49-
c. It would be more appropriate for the Guidance Manual
to refer EPA personnel to state-of-the-art literature on a
particular model or technique which should be used in a given
case involving lake, river, estuary, or ocean thermal dis-
charges. The Guidance Manual, when adopted in its final form,
will have the force of regulation, and it should not be
encumbered with technical data and detail related to performing
specific thermal load analyses. It cannot possibly cover the
range of applications which must be analyzed.
-------
C. Results of Industry Questionnaire
-------
ATTACHMENT C
RESULTS OF INDUSTRY QUESTIONNAIRE
Fifty-nine utilities, totalling 350,212.7.MW of generating
capacity under the given definition of "existing sources,"
responded to Part I of the EEI-UWAG questionnaire concerning
§ 316(a) of the Federal Water Pollution Control Act Amendments
of 1972. This is equivalent to 82.2% of the nation's projected
total installed generating capacity for 1973 (425,847 MW).
The total megawatts of capacity given in response to each
question are set out in the attached excerpt from the results of
the questionnaire. Also included is Table I demonstrating the
total megawatts answering each question and indicating what
percentage these figures are of the total capacity responding
to the questionnaire.
Fifty-three utilities, totalling 337,812.1 MW of generating
capacity under the given definition of "existing sources,"
responded to the EEI-UWAG Emergency Bulletin of June 1, 1974
concerning answers to the EEI-UWAG § 316(a) questionnaire.
This is the equivalent of 79.3% of the nation's projected
total installed generating capacity for 1973. The total
megawatts given in response to each question are set out
in the attached excerpt from the results of the telegram.
Each answer is followed by the percentage this figure is of
the total capacity responding to the telegram.
See attached Part I of the questionnaire.
-------
The questionnaire and telegram necessarily reflect hasty
and highly subjective answers to questions regarding the
effect of the vague EPA § 316(a) proposals. They do not
reflect the vagaries of litigation, except in the time
estimates for preparation of an adequate case. The estimates
of plants qualifying under § 316(a) are unrealistically
high since the respondents indicated an average need for
about 14 to 23 months to prepare the cases for approval.
Yet, as the UWAG Comments on § 316(a) graphically demonstrate,
these time periods simply are not available.
These questionnaire and telegram results were compiled
prior to an industry-wide critique of the EPA Guidance
Manual for § 316(a) and thus do not reflect that critique.
We concur, however, with the industry conclusion that the
number of plants getting exemptions under the "no appreciable
harm" test and the "representative important species" test
will be severely limited if the Manual is stringently
adhered to.
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A. Section 316(a)
1. How Many megawatts on your system are classified
as "existing sources"- under FWPCA? -- 350,212.7
2. On how many "existing source" megawatts on your
system do you have:
a. Thermal effluent dispersion studies? -- 190,756.25
b. Studies of the biological effects of your thermal
discharges? — 170,938.25
c. Studies of the biological composition of the aquatic
life at your plants? — 206,251
d. As to (2)(b) and (c), how long would to need to
complete any further studies you feel would be
appropriate to prepare for a 316(a) proceeding if
it were uncontested? -- Average of 13.9 months with
a range of 0-36 months
If it were contested? -- Average of 22.7 months with
a range of 0-60 months
3. How many "existing source" megawatts on your system
have been certified by your state authorities as being in
compliance with the applicable federally approved state water
quality standards? -- 100,431
4. To how many "existing source" megawatts on your system
do you believe your EPA regional administrator or your state
authorities will grant 316(a) alternative effluent limitations
""Existing sources" are units in operation, units under construc-
tion, and units for which contractual obligations to purchase
equipment for installation at a specific site were made prior to
March 4, 1974.
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under any of the following:
a. A "no appreciable harm" test of 122.8(a)(l), or
122.13(a)(l), of EPA's proposed 316(a) regulations
(see 39 Federal Register 11434, March 28, 1974)?
-- 117J074.4
b. A "representative and important species" test of
122.8(a)(2) or 122.13(a)(2) of the EPA's proposed
316(a) regulations? -- 56,527.5
c. A water quality standard test, should EPA include
one in the 316(a) regulations; i.e., that you comply
with the applicable federally approved state water
quality standards? -- 93,166.7
d. Total of above? -- 181,433.1
5. As to any plants that cannot qualify under 4(c), could
they qualify if the applicable water quality standards contained
a mixing zone defined as follows:
An area whose temporal and spatial (area, volume
configuration and location) distribution will
assure the protection and propagation of a
balanced, indigenous population of shellfish,
fish and wildlife in and on the receiving water
body?
-- Yes 30; No 8; Unknown 21
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TABLE I
SUMMARY OF § 316(a) QUESTIONNAIRE RESPONSES
Question Megawatts Percentage of Total
Number Question Posed Responding Megawatts Responding
1 How many MW are "existing sources" 350,212.7 100
2 On how many "existing source" MW
do you have:
2a Thermal disperson studies 190,756.3 54.47
2b Biological affects studies 170,938.3 48.81
2c Biological composition studies 206,251 58.89
3 How many existing source MW have been
state certified as within federally-
approved state water quality standards 100,431 28.68
4 To how many existing source MW do you
believe your EPA regional administra-
tor or state authorities will grant
§ 316(a) alternative effluent limita-
tions for:
4a "No appreciable harm" test of 122.8
(a)(l) or 122.13 of EPA's proposed
§ 316(a) regulations 117,074.4 33.43
4b "Representative and important species"
test of 122.8(a)(2) or 122.13(a)(2)
of EPA's proposed § 316(a) regula-
tions 56,527.5 16.14
4c A water quality standard test,
should EPA include on the in the
§ 316(a) regulations 93,166.7 26.60
4d Total of above 181,433.1 51.81
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RESPONSES TO E.E.I. - UWAG EMERGENCY BULLETIN OF JUNE 1, 1974
Responses to the EEI questionnaire of April 26 show that
of total megawatts responding (350,000 out of 425,000
total industry) only 93,000 MW were listed in answers to
4(c), i.e. 316(a) exemption via a water quality standards
test. Responses to the questionnaires and inquiry of
several companies, however, show that companies responded
to question 4 on the basis of differing assumptions (cumulative
results v. independent separate test) and some only included
plants under answer to 4(c) that could not get 316(a)
exemptions under 4(a) the "no appreciable harm" test or
4(b) the "indicator species" test. We accordingly need a
new response from you on the basis of each of the tests
in 4(a), (b) and (c) being treated as alternative methods
of exemption (i.e. one plant may get out under more than one
of them). Please respond by reply telegram or night letter
or telecopier message (804-649-3661, indicate telecopier
message for Freeman).
As follows: (Your individual response will be treated as
confidential)
1. Company name
2. Total megawatts of "existing sources" on your
system 337,812.1 MW (79.33%. of projected capacity for
1973)
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3. Of the above, the megawatts you believe should
qualify for 316(a) exemption under:
(A) No appreciable harm test
(i) with Manual in effect 125,294.3 MW (37.09%)
(ii) without Manual in effect 162,484.3 MW (48.1%)
(B) Representative and Important Species test
(i) with Manual in effect 77.935.3 MW (23.07%)
(ii) without Manual in effect 161.101.3 MW (47.69%)
(C) A State Water Quality Standards test (As
presently approved by EPA)
(i) if interpreted by State 159.587.8 MW (47.24%)
(ii) if interpreted by EPA 127,504.8 MW (37.74%)
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