Industrial Waste
Management
-------
Industrial waste is generated by the production
of commercial goods, products, or services.
Examples include wastes from the production
of chemicals, iron and steel, and food goods.
-------
This Guide provides state-of-the-art tools and
practices to enable you to tailor hands-on
solutions to the industrial waste management
challenges you face.
WHAT'S AVAILABLE
• Quick reference to multimedia methods for handling and disposing of wastes
from all types of industries
• Answers to your technical questions about siting, design, monitoring, operation,
and closure of waste facilities
• Interactive, educational tools, including air and ground water risk assessment
models, fact sheets, and a facility siting tool.
• Best management practices, from risk assessment and public participation to
waste reduction, pollution prevention, and recycling
-------
ACKNOWLEDGEMENTS
The blowing members or the Industrial Waste Focus Group and the Industrial Waste Steering Committee are gratefufy
artrwrterJrjed for alrf their ^arriassistarce in the o^vetopmer*^
Current Industrial Waste Focus
Group Members
ram OUr, lifs i
Company
Walter Carey. Nestle USA, Inc and
New MHford Farms
Rama Chaturvedi Bethlehem Steel
Corporation
H.C. Clark. Rice University
Barbara Dodds, League of Women
Voters
Chuck Feerick. Exxon Mobil
Corporation
Stacey Ford. Exxon Mobil
Corporation
Robert Giraud DuPont Company
John Harney Citizens Round
Table/PURE
Kyle Isakower. American Petroleum
Institute
Richard Jarman, National Food
Processors Association
James Meiers, Cinergy Power
Generation Services
Scott Murto, General Motors and
American Foundry Society
James Roewer, Edison Electric
Institute
Edward Repa. Environmental
Industry Association
Tim Ssytor, International Paper
Amy Schaffer, Weyerhaeuser
Ed Skemote. WMX Technotogtes, Inc
Michael Wach Western
Environmental Law Center
David Wets, University of South
•**—i Medical Center
Hat uwin, Cherokee Nation of
Oklahoma
:• i^mal Waste Focus
Group Members
,™.,» ~™.™« «w.,_ -,„„
Brian Forrestal. LaioTaw Waste
Systems
Jonathan Greenberg, Browning-
Ferris Industries
Michael Gregory, Arizona Toxics
Information and Sierra Club
Andrew Miles. The Dexter
Corporation
Gary Robbins. Exxon Company
Kevin San. National Paint & Coatings
Association
Bruce Steiier, American Iron & Steel
Lisa WiHams. Aluminum Association
Cuircnt Industrial WaMc Si
Committee Members
r&x*y tiOUOIKIM. MaauwMIUUII Ul JtOUB
and Territorial SoOd Waste
Management Officials
Marc Crooks, Washington State
Department of Ecology
Cyndi Darling. Maine Department of
Environmental Protection
JonDilDard Montana Department of
Environmental Quafty
Anne Dobbs. Texas Natural
Resources Conservation
Commission
Richard Hammond, New York Slate
Department of Environmental
Conservation
Elizabeth Haven California Stale
Waste Resources Control Board
Jim Hul. Missouri Department of
Natural Resources
Jim Knudson, Washington State
Department of Ecology
Chris McGuire, Florida Department
of Environments! Protection
Gene Mitchell Wisconsin
Department of Natural Resources
William Pounds, Pennsylvania
Department of Environmental
Protection
Bijan Sharafkhani Louisiana
Department of Environmental
dually
James Warner, Minnesota Potution
Control Agency
idustrial Waste Steering
faliMia width, nritfitfe Ls0gJd4Uimii Of
Environmental Protection
Norm Gumer*. Arizona Department
of Environmental Quaty
Steve Jenkins, Alabama Department
of Environmental Management
Jim North Arizona Department of
Environmental Qusfcy
-------
Solid Waste
and Emergency
onse
•v ',
520/B-94-001
September 1996
it'
, ^,.
onmental Issues
-------
to
I
ssiaes
September 1996
Office of Solid Waste &
Emergency Response
Project Manager and Editor:
Julie Klaas Pangman
Cover photo: Bottomland Hardwoods, Yazoo
National Wildlife Refuge, Mississippi, courtesy
U.S. Fish & Wildlife Service.
This Guide To Environmental Issues was based
in concept and format on Citizens' Guide for
Environmental Issues - A Handbook for Cultivating
Dialogue by the National Institute for Chemical
Studies and U.S. EPA, 1989 and 1990.
-------
contents
introduction
where do I get help?
pollution prevention
air & radiation
surface water
ground water
pesticides
hazardous waste
solid waste
2
3
4
8
12
16
20
24
28
public health 32
community safety 34
health & environmental risk 38
enforcement 40
glossary of terms & acronyms 44
major environmental laws 72
government agencies 78
EPA information numbers 82
Note: Bold face terms used throughout are
defined in the Glossary, Laws Section, or
Government Agencies Section.
-------
information sources
Although protective laws respond to public
needs, we need to understand how laws and
regulations work in real situations. Knowing
where to turn for help is sometimes as diffi-
cult as understanding which issues are
addressed by specific environmental laws.
intr o due tio n
By choosing to read this Guide, you are show-
ing your concern for the environment. Many
of our daily activities can potentially alter envi-
ronmental balances, but too often we ignore
relationships among people, other living crea-
tures, and our surroundings.
Environmental protection can be most effec-
tive when complex connections between all
parts of an ecosystem and society are taken
into account. No longer can we say, "I'm too
busy to be concerned with the environment—
someone else can take care of it."
citizen participation
That someone is you. Citizen participation is a
key element in environmental protection. This
Guide is dedicated to the enthusiastic interest
and creative ideas of people across the country
who are concerned about the nation's environ-
mental health. Diverse elements of everyday
life make each contribution unique. The abili-
ties and vision of a multitude of people need
to be applied to the public decision-making
process.
2
This handbook lists federal and state agencies
as well as pertinent health, safety, and envi-
ronmental laws, with brief comments on each
law's intent.
the terminology problem
Discussing complex economic, technical,
health, safety, and environmental issues can
be frustrating. Many environmental conversa-
tions evolve into a series of acronyms, techni-
cal terms, and jargon that can leave you con-
fused unless you have been previously
involved with the issues. When words or
phrases remain undefined, dialogue is likely
to be limited. With Guide to Environmental
Issues, we try to make specific concepts clear
to all so that language and limited access to
information do not hinder public participa-
tion.
When you see a term in bold, that word is
defined in the Glossary in the back or may refer
to a specific Law or Government Agency. We
included terms and definitions relating to pol-
lution prevention, enforcement, regulations,
-------
community involvement, and environmental
risk. We also included a variety of technical
terms and acronyms frequently used by sub-
ject matter specialists.
Please note that many terms in the text and
glossary may have different meanings for dif-
ferent audiences. Definitions and explanations
presented here provide only a general under-
standing of the terminology and should not
be taken as full technical or legal definitions.
Although much more could be said about any
topic, the information provides the basics in
non-bureaucratic English. We hope this
Guide helps you become actively involved in
community dialogue and better able to under-
stand environmental issues.
Civic and community organizations are usual-
ly helpful too. Chances are, if you contact one
group that is not involved with a particular
topic, you will be steered to the correct orga-
nization. In some areas, environmental and
other community groups have formed coali-
tions for improved communications and
action on specific issues.
The literally thousands of trade and citizen
groups involved in environmental issues are
far too numerous to list. Your local telephone
Yellow Pages contains a directory of many
groups and their respective telephone num-
bers. You should contact those groups whose
interests are similar to yours.
where do I get help:
Have you ever wondered where to turn for
answers to environmental problems? If so,
you are not alone. In the back of this Guide
we have listed four pages of EPA and federal
agency telephone numbers and addresses, fol-
lowed by two pages of Hotlines that EPA
maintains for general and specific information.
But protection of the environment is a big job.
Federal, state, and local agencies across the
nation are all involved, employing thousands
of citizens who care about their health and
natural resources. Every city, county, and
state networks with federal groups to share
and provide information. If the first person
you contact can't answer a specific question,
he or she will know who can.
-------
substitute raw materials, and make improve-
ments in management techniques, training, and
inventory control.
Here's one example. The U.S. Environmental
Protection Agency (EPA) is responsible for
protecting people and the environment from
risks associated with all sorts of toxic chemicals.
prevention
One of the most encouraging environmental
developments of recent years is the trend toward
preventing — and not just treating — pollu-
tion. For example, scientists have found various
ways to treat wastes in order to protect the envi-
ronment. Now, there is growing realization that
whenever possible, avoiding wastes altogether is
even better.
On a broad level, passage of several laws relating
to the environment helped create a climate of
change. The Clean Air Act (CAA) in 1970 and
the Clean Water Act (CWA) in 1972 signalled
our nation's intent to address pollution. Many
activities and programs have followed these Acts
to limit further the amounts of allowable dis-
charges into the environment. We now recog-
nize that end-of-pipe technology offers only a
partial solution and fails to completely protect
the environment.
The Pollution Prevention Act of 1990 takes a
new approach. To avoid pollution in the first
place, manufacturers are encouraged to modify
equipment and processes, redesign products,
One of the best ways to accomplish this is
through pollution prevention. Before a new
chemical is marketed, EPA reviews the ingredi-
ents and intended uses to determine potential
health or environmental hazards. During the
review, EPA identifies measures aimed at reduc-
ing exposures to the chemical. At this early stage,
companies wanting to manufacture or use the
chemical can readily integrate pollution preven-
tion measures into their plans. If such measures
will not reduce potential risks, EPA can regulate
the chemical in several other ways.
EPA also reviews chemicals already in produc-
tion. The Toxic Substances Control Act
(TSCA) Inventory lists about 70,000 existing
chemicals. Of greatest concern are 10,000 to
14,000 high-volume chemicals for which little
or no data exist. To address this large number
of chemicals, EPA systematically reviews clus-
ters of related chemicals and ranks them for
further review or testing. Nominations of can-
didates for screening come from a variety of
sources, including a federal interagency testing
committee of experts.
-------
Pollution prevention also involves waste mini-
mization — recycling what we used to throw
away or not generating wastes in the first place.
Many companies now are cleaning up solvents
for re-use or changing the industrial process to
more efficiently use raw materials. Likewise, sci-
entists are developing new technolo-
gies every year to eliminate or
greatly reduce our depen-
dence on toxic sub-
stances. A simple
example is using hot
water and soap
instead of organic
solvents to clean
equipment.
EPA POLLUTION PREVENTER
tion techniques. The printing and drycleaning
industries are currently piloting a voluntary shift
toward using more environmentally safe chemi-
cals and technologies. More information is avail-
able at 202/260-1821.
Six "Energy STAR" programs seek to prevent
emissions of air pollutants associated
with climate change and acid
rain, while promoting prof-
itable investments in ener-
gy-efficient technologies.
Information about all
"Energy STAR" programs is
available from 202/233-
9659. You can request
specific documents to be
Preventing pollution can save money in a variety
of ways, and so EPA has designed several non-
regulatory, innovative pollution prevention pro-
grams. Corporations, environmental groups,
electric utilities, and state, city, and local govern-
ments participate voluntarily in the following:
The "33/50" Program focuses on reducing over-
all risk from 17 high-priority toxic chemicals.
The name derives from voluntary performance
goals: participating companies pledged to
reduce emissions and transfers of these chemi-
cals by 33% in 1992 and 50% by 1995. The
1992 goals were surpassed a year ahead of
schedule — more than 486 million pounds of
reductions were achieved, due to conscientious
business practices.
Through the "Design for the Environment" Pro-
gram, EPA is working with specific industries to
find chemical substitutes and exposure reduc-
mailed or sent by facsimile. A handy set of direc-
tions walks you through program selections on
your telephone.
In a nutshell, the "Green Lights" program
encourages the widespread use of energy-saving
light bulbs and fluorescent tubes. "Green Lights"
participants are already avoiding over 95 million
kilowatts annually — that equals $9.4 million in
avoided electricity costs.
The "Energy STAR Buildings" program is a part-
nership effort with business to promote energy
efficiency in commercial buildings. The program
starts with membership in "Green Lights," fol-
lowed by a comprehensive building survey and
tune-up. The program then engineers increased
efficiency in heating, ventilation, and air condi-
tioning loads and improved fans and air-han-
dling systems.
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"Energy STAR Computers" is another partner-
ship with leading U.S. manufacturers to save
additional energy costs. Desktop computers,
monitors, and printers can "sleep" or "power
down" when not in use, cutting electricity use by
over one-half. The federal government, the
largest user of computer equipment in the
world, will buy only energy-efficient computers
in the future.
The "Ag STAR" Program focuses on animal waste
methane which is emitted to the air when
manures ferment. Such emissions waste a usable
energy supply, produce odors, and contribute to
climate change. This innovative program recov-
ers methane gas from swine and dairy manure
for re-use by the farmer.
The "Natural Gas STAR" program is another
methane recovery project aimed at oil and natur-
al gas pipeline leakages and system inefficiencies.
EPA is working with public utility commissions
to reform rate structures to include incentives for
efficiency gains, cost reductions, and methane
emissions reductions.
The "Super Efficient Refrigerator
Program" seeks to produce
energy-wise appliances for
home and commercial use.
Chlorofluorocarbons
(CFCs), chemicals used in
refrigerators for cooling and
freezing, are ozone-depleting
substances that will be phased out m ffk
of production by 1995. This program f Mn 1
is finding alternative coolants and opti- 111"II
mizing energy efficiency through better com-
pressors, door seals, and insulation.
In addition, EPA has many other new voluntary
programs, some just getting off the ground, but
these three top the list:
The "Climate-Wise" Program challenges organi-
zations from all sectors of the economy to find
creative ways to limit or reduce greenhouse gas
emissions (see climate change in the Glossary).
Such actions may include raw material substitu-
tion, process improvements, and switching to
lower-carbon-content fuels. Other initiatives put
into place employee's good ideas: planting more
trees, grasses, and plants to absorb excess carbon
dioxide from the air, carpooling, and installing
corporate-wide efforts to recycle and reduce
waste. For more information, call 202/260-4407.
The "Waste-Wise" Program is a public-private
partnership designed to assist businesses in
reducing their solid waste. Businesses set their
own goals and commit to achievements in the
following three areas: waste prevention, recy-
cling collection, and buying or manufacturing
recycled products. Additional information is
available by calling 800/ EPA-WISE.
Last, but not least, is the "Water
Alliance for Voluntary Efficiency" Pro-
gram, called WAVE. Designed to
focus attention on efficient use of
water, WAVE encourages hotels and
motels to install water-saving
EPA
Oreen
Lights
4-^
-------
Water Alliances for Voluntary Efficiency
devices. Use of low-flush toilets, and low-flow
shower heads, dishwashers, and laundry equip-
ment, as well as recycling wastewater, is both
profitable and practical. The payback period for
most projects is three years or less. This program
will be expanded to more businesses, institu-
tions, and local governments. For more informa-
tion, call 202/260-7288.
The same basic pollution prevention ideas can
be used in the home. Each of us can use energy
efficient or recyclable products and decrease our
volume of waste. Contact agencies listed in the
Directory of this Guide for things you can do to
prevent pollution. In addition, bookstores and
libraries typically contain information that can
help you and your family dramatically reduce —
and in some cases eliminate altogether — every-
day sources of pollution. As our awareness
grows and we begin to realize the full health and
environmental effects our actions have, pollution
prevention becomes increasingly attractive.
some questions & answers
on pollution prevention
Q. How does pollution prevention work?
A. Here's an example. If a chemical has been
identified as toxic to the environment and a less
harmful substance is used instead, pollution may
be prevented. By the same token, your conscien-
tious selection of products for the home can pre-
vent pollution.
Q. Why wasn 't pollution prevention started
sooner?
A. During the industrial revolution, few peo-
ple envisioned what an enormous collective
effect we would have on the global environment.
We chose first to treat the obvious effects of pol-
lution, not the sources.
Q. What are some specific ways I can personally
prevent pollution?
A. Look for goods with less packaging; use
longer-lasting, full-spectrum fluorescent tubes
that require only a fraction of the energy of
incandescent bulbs; reduce your use of haz-
ardous household products; recycle glass, paper,
plastic, cardboard, and other materials. Many
other ideas are available from EPA, environmen-
tal groups, and trade associations.
Q. Where can I get more information on pollution
prevention?
A. Call EPA's Pollution Prevention Office at
202/260-1023. Many states also have pollution
prevention offices with information available to
the public.
7
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address these and other chronic air quality
problems.
These Amendments signal a change from past
pollution control approaches. Innovations in
this law include programs based on coopera-
tion between government and industry, and
air & radiation
Perhaps more than anything else, air interacts
directly and constantly with us. All land crea-
tures breathe gases and materials suspended
in the air. By the same token, trees, grasses
and other plant species carpeting the earth are
equally dependent on clean air. We all have a
stake in the quality of our air.
Outdoor air quality is affected by many human
and natural activities. Manufacturing compa-
nies, power plants, small businesses, automo-
biles, forest fires, and volcanoes are all sources
of air pollution. Any activity that releases mate-
rials into the air affects air quality.
Although the landmark 1970 Clean Air Act
(CAA) prompted large improvements in air
quality, not all of Congress' goals have been
met. Emissions of pollutants such as sulfur
oxides, volatile organic compounds
(VOCs), carbon monoxide, particulates, and
lead have been greatly reduced. But much
work remains to effectively reduce acid rain,
smog, and air toxics associated with increased
cancer risk and other health complaints. The
1990 CAA Amendments were intended to
pollution prevention incentives based on
market forces. The goal of the entire Act is to
reduce air pollution by 56 billion pounds per
year. These reductions are expected to come
from cutting emissions from several major as
well as many minor sources.
Urban pollution also is addressed under the
1990 CAA Amendments. Cities that fail to
meet standards for human health must com-
ply with the standards by deadlines set in the
law. In many urban areas, ground level ozone
persists in concentrations harmful to human
health. Large sources of pollutants (such as
nitrogen oxides) that contribute to this prob-
lem and smaller sources of hydrocarbons
must reduce emissions. In some cities, this
requires vehicle emissions testing, vapor
recovery systems at gas stations, and other
controls on smaller sources of pollution.
Carbon monoxide problems in non-attain-
ment areas are addressed in a similar fashion.
Areas with the worst carbon monoxide prob-
lems are required to use special forms of gaso-
line known as oxyfuels during winter months.
-------
Other areas that fail to attain standards for
particulate matter may be required to limit
the use of wood stoves and fireplaces and to
impose stiffer controls on industry.
In addition, emissions of 189 air toxics must
be reduced by the turn of the century. EPA
has published a list of source categories for
which Maximum Achievable Control Tech-
nology (MACT) is being developed. Compa-
nies that achieve reductions of emissions
before the regulations are proposed can
receive six-year extensions to comply with the
standard. EPA has estimated that overall
health risks, including risk of cancer, respira-
tory disease, heart ailments, and reproductive
disorders, will decline significantly once
MACT controls are installed.
The CAA Amendments also look beyond the
U.S. to reduce acid rain and address loss of
stratospheric ozone. Sulfur dioxide emissions
from power plants are a major source of acid
rain. Under a new two-phase system, these
emissions will be cut in half by the year 2000.
Power plants will be
issued emission
allowances which
can be banked or
traded. If emissions
exceed the allowances
held, the power plant
must pay a penalty.
The CAA Amend-
ments also restrict
the use, emission,
and disposal of
ozone-depleting chemicals such as chlorofluo-
rocarbons (CFCs, also known as Freons) and
other chlorine- and bromine-containing com-
pounds. CFCs are commonly used in refrigera-
tors and air conditioners.
Working in consultation with state and local
governments, EPA bears primary responsibili-
ty for this sweeping legislation. EPA's Office
of Air and Radiation is the lead office for
developing the scores of regulations required
under the Act. States also share responsibility
for issuing and enforcing air pollution per-
mits. In some areas, local governments will
test vehicle emissions and monitor other air
quality issues.
Indoor air is often more polluted than the air
outside our homes and workplaces. This has
been shown to be true across the country, even
in neighborhoods without heavy industrial
pollution. More than 90% of our time is spent
indoors where we are
exposed to contaminants
from faulty heating units,
-------
gas stoves, fireplaces, cleaners, solvents, cos-
metics, cigarette smoke, wall coverings, paints,
and improperly stored chemical products.
Another significant indoor health hazard
results from radon gas, which in many areas of
the country seeps from the earth into homes.
There are several ways to check and safeguard
your home, with proper ventilation being one
of the simplest. Radon test kits are available
from a variety of sources including hardware
stores, health departments, and environmental
agencies.
In your home, make sure that gasoline cans for
lawn mowers have securely fitted lids. These
items as well as household hazardous chemicals
should be stored outside the home when possi-
ble. Dispose of unwanted or unused solvents
and pesticides properly. Some stores that sell
these items will dispose of them for you. In
many states, environmental agencies in cooper-
ation with industries have sponsored "House-
hold Hazardous Waste Days" during which citi-
zens may take paint, solvents, and other wastes
to local collection sites for proper disposal.
The quality of indoor air is largely up to indi-
viduals and businesses. Although safe working
conditions are mandated by the Occupational
Safety and Health Administration (OSHA),
no agency forces homeowners to provide clean
indoor air. You must take steps on your own
to improve the quality of indoor air in your
home.
some questions & answers
about air quality
Q. Whom do I call to report visible emissions
or noxious odors in the air?
A. Generally, your state or local air quality
office should be contacted. For emergencies,
dial 911 or your local fire department or pub-
lic health agency. Be aware that visible emis-
sions are not necessarily the most harmful;
most emissions are colorless or odorless.
Q. Who monitors the required reports of toxic
air emissions and safety measures used to control
those emissions?
A. EPA, your state air quality office, the
State Emergency Response Commission
(SERC), and your Local Emergency Plan-
ning Committee (LEPC) monitor these
reports.
Q. Who sets the legal air exposure limits for
toxic chemicals?
A. EPA sets the standards for outside (ambi-
ent) air, OSHA for the workplace.
Q. What is Best Available Control Technology?
WhatisMACT?
A. Best Available Control Technology
(BACT) refers to the best equipment, tech-
niques, or mechanisms that are currently
available to achieve a level of pollution con-
trol. Through research, technology may be
10
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available in the future to achieve even better
controls. MACT is Maximum Achievable
Control Technology and refers to the maxi-
mum degree of pollution reduction obtainable.
Q. What happens to toxic airborne emissions
when they are released from chemical plants,
automobiles, or power plants? Do they change
into other toxics when they mix? Where are they
finally deposited?
A. We are only beginning to find out what
happens to emissions. Little is known about
the interaction of chemicals in ambient air,
but some effects such as smog, ozone deple-
tion, acid rain, and climate change are a few
of the known consequences when air emis-
sions interact, are blown by the wind, and are
deposited in cities, fields, and wetlands.
These effects have generated new research to
find answers.
Q. Do weather conditions affect pollution and
the dispersion of airborne chemicals?
A. Yes. Weather conditions—including
temperature, sunlight, precipitation, and
wind—play a major role in how vapors and
suspended particles behave. Sunlight can
destroy or alter some airborne chemicals.
Rain, snow, and wind affect where and when
air pollutants are deposited on land or water.
Q. Are incinerators a source of toxic emissions
to the air?
A. Well-designed, well-constructed, and
well-operated incinerators can nearly elimi-
nate toxic emissions to the air. To receive a
permit to operate, a hazardous waste inciner-
ator must demonstrate 99.99% efficiency in
destroying most hazardous wastes. The stan-
dard is even stricter for dioxins and PCBs.
Q. How does eliminating toxic wastes at the
source of production differ from utilizing best
available control technology (BACT)?
A. Basically, at-source control is a pollu-
tion prevention approach that seeks to keep
hazardous wastes from being produced.
BACT, on the other hand, is the best technol-
ogy for treating, containing, or reducing dis-
charges and emissions.
11
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charged into our lakes, streams, rivers, and
oceans, as well as the energy needed to
treat wastewater.
The cornerstone for protecting this valu-
able resource and controlling water pollu-
tion was the Federal Water Pollution Con-
surface water
Although the vast majority of the earth's
surface is covered with water, the oceans
and seas are salty. Only 3% is fresh — and
two-thirds of that is ice! This tiny fraction
of fresh water sustains a multitude of very
specific life forms, including our own.
While many people get their drinking
water from underground reserves, surface
waters also are an important source. In
addition, lakes, rivers, and streams provide
boating, swimming, fishing, and other
forms of recreation.
The economic support offered by plentiful
and high quality surface waters includes
agricultural irrigation, process and cooling
waters for power plants, and chemical,
steel, lumber, mining, and other industrial
operations. The eastern U.S. has a bounti-
ful supply of this natural resource, while in
the western states, the relative scarcity of
surface water serves to increase its value. In
all parts of the country, however, we need
to use our water efficiently. Using less
water reduces the amount of wastes dis-
trol Act of 1972. In 1977, the Act was
reauthorized and renamed the Clean
Water Act (CWA). The goal of the CWA
is the "restoration and maintenance of the
chemical, physical and biological integrity
of the Nation's waters." Under this Act, it
is illegal to discharge pollutants from a
point source into any surface water with-
out a National Pollution Discharge Elim-
ination System (NPDES) permit. EPA
has the authority to set standards for the
quality of wastewater discharges. Amend-
ments to the CWA in 1987 increased the
ability of EPA and states to improve water
quality by addressing toxic discharges,
allowing citizen lawsuits, and funding
municipal sewage treatment facilities.
Most states have legal authority to imple-
ment and enforce the provisions of the
Clean Water Act, while EPA retains over-
sight responsibilities for most state water
programs. Water quality standards, crite-
ria to assure that streams are "fishable and
swimmable," are set by each state, with
12
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EPA oversight and approval. State water
pollution control agencies and EPA use
these standards to set limits on the
amounts of pol-
lutants that can
be dis-
charged
into surface
waters. Ques-
tions dealing
with specific
bodies of water,
monitoring sur-
veys, or permits
should be direct-
ed to your state water \
quality agency. \
Wetlands occupy a special-
ized niche between land and sur-
face water, where plants and ani-
mals abound. Wetlands have his-
torically been viewed as mosqui-
to-ridden wastelands, impedi-
ments to development because
of their saturated and frequently
flooded conditions. The impor-
tance to fish and wildlife, clean
water, and flood control went
unappreciated as draining and fillin
operations destroyed more than 60% of
coastal and inland wetlands nationwide.
Discharges from industries, midnight
dumping of toxic wastes, urban runoff,
acid rain, and agricultural chemicals have
polluted and degraded wetlands as well.
\
Wet meadows, prairie potholes, wooded
swamps, and coastal, saltwater marshes are
distinctly different. But all wet-
lands are important wildlife
habitats, breeding grounds,
and nurseries. Hundreds of
species of birds use wetlands
for mating, nesting, brood-rear-
ing, and for resting and feeding
during migration. Fish, crus-
taceans, insects, and other animals
form complex food chains in
these valuable ecosystems.
Some progress has been made, but a major
challenge remains to reduce and control
pollutants that enter all surface waters.
Water that runs off city streets and parking
lots during rainstorms may contain metals,
oil, grease, and other automotive fluids.
Runoff from agricultural fields contains ani-
mal waste, fertilizers, and pesticides. These
contaminants and others are called non-
point source pollution and cannot be
reduced by traditional end-of-pipe controls.
Recent stormwater regulations are begin-
ning to reduce nonpoint source pollution
from industries and
cities. Farming prac-
tices that emphasize
soil conservation and
appropriate use of pesti-
cides are effective in reducing pollutants in
runoff. You can help prevent nonpoint
source pollution by properly disposing of
13
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used motor oil, using fewer pesticides, and
carefully assessing lawn and garden prac-
tices. By reducing the potential contami-
nants we place on streets, driveways and
lawns, we can make a substantial contribu-
tion to improving the quality of rivers,
streams, lakes, and wetlands.
some questions & answers
on surface water
Q. Where can I get information about the
water quality of streams, lakes, wetlands, and
other bodies of water in my state?
A. State water quality agencies, in gener-
al, maintain records of water quality for
many state surface waters. General infor-
mation about water quality is available
through the state agency information
offices, EPA, and many citizen groups. EPA
maintains an Office of Water Resource
Center to answer general questions about
standards and water quality. The telephone
number is 202/260-7786.
Q. How are water quality standards devel-
oped for U.S. surface waters?
A. EPA develops water quality criteria
that indicate concentrations of contami-
nants that are not expected to harm human
health and aquatic life. States may use
these criteria to set water quality standards
or they may develop their own standards
that address state-specific needs, are scien-
tifically defensible, and as stringent as the
national criteria. States are required to
review water quality standards every three
years. New information from EPA, indus-
try, or any other group concerning safe lev-
els of materials in surface water may be
considered, and existing standards may be
revised to reflect current scientific develop-
ments. Notices of proposed revisions are
published in newspapers to encourage the
public to participate in the revision
process. State standards must be approved
by EPA.
Q. How can I find out what materials are
being discharged into local bodies of water?
A. By submitting a request to the water
pollution control agency in your state, you
can review the National Pollutant Dis-
charge Elimination System (NPDES) per-
mits for specific dischargers into surface
water. New permits and renewals of exist-
ing permits are published in local papers
with information on how to review the per-
mit application. State and federal agencies,
including EPA's Office of Water and the
U.S. Geological Survey, compile stream-
specific water quality data in various
reports available to the public.
Q. What can I do if I think that an NPDES
permit should not be issued or that the
requirements of the permit are inadequate?
14
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A. Anyone may comment on the issuance
or reissuance of an NPDES permit within
the period listed in the public notice. The
permit-issuing agency must respond to
public comments before granting the per-
mit. Most states have a process by which
affected citizens and companies may appeal
the terms and conditions of a NPDES per-
mit or who receives one.
Q. Whom do I contact if I see a spill or
notice unusual conditions such as color, odor,
or fish kills in a stream, lake, estuary, or
coastal area?
A. First contact your city or county pub-
lic health department or check to see if
your state has a toll-free pollution hotline.
Any spill should be reported immediately
to the National Response Center at
1-800-424-8802. For other complaints and
concerns about water quality, call your
state agency representatives during normal
business hours and ask for an investigation.
15
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parts of the country are abundant and sup-
ply good quality water, contamination in
other areas may be severe but undetected
until the ground water is used.
Activities to protect ground water are guid-
ed by several different federal and state laws
and are conducted by a number of different
ground wa±er
The nation's ground water resources are
extremely valuable. Half of all Americans
and more than 95% of our rural population
get their household water supplies from
underground sources. Ground water also is
used for about half of all agricultural irriga-
tion and a third of industrial water needs. In
many places, this vital resource is already
contaminated or threatened.
Even more than surface waters, ground
water resources are often taken for granted
because they are not visible. Rainfall and
surface water which had seeped into the
earth's crust over many years formed under-
ground reservoirs. Where the water table is
at or close to the surface, ground water
enters wetlands, lakes, rivers, and streams
and provides a base flow during dry periods.
By comparison to rivers and streams, ground
water moves very slowly and with little tur-
bulence. Therefore, once contamination
reaches ground water, little dilution or mix-
ing occurs. While wells and springs in many
agencies. Some states have comprehensive
ground water protection statutes, but all
states have some authority to protect ground
water under solid and hazardous waste laws,
public health laws, and energy extraction
laws. Regulatory authority and information
about ground water quantity and quality
vary among state agencies, but usually
reside in natural resources, environmental
protection, or public health agencies.
Ground water issues in agricultural areas
are the concern of a wide variety of organi-
zations and institutions including soil and
water conservation districts and commis-
sions. In urban areas, local public works
and planning departments can often
respond to questions about the effects of
land disturbance on ground water.
Federal statutes that authorize ground
water protection include the Safe Drinking
Water Act (SDWA), the Resource Conser-
vation and Recovery Act (RCRA), and the
-------
Comprehensive Environmental
Response, Compensation, and Liability
Act (CERCLA, or Superfund law). On the
federal level, EPA has primary responsibili-
ty for ground water.
As an individual, you can
help protect your com-
munity's ground
water. Use and dis-
pose of household
hazardous substances
properly. Reduce your
use of these hazardous
substances whenever
possible. When you do
have pesticides,
cleaning products,
and paint to dispose
of, don't pour these
products
down the
drain, put
them in the trash, or dump them on the
ground. Hazardous substances disposed of in
these ways can find their way into both sur-
face and ground water. Reducing home water
use also will reduce ground water contami-
nation.
Household products that are hazardous
materials may be recycled. Check with local
gas stations and automotive centers about
recycling used motor oils and batteries and
with paint stores for leftover paints and sol-
vents. In many communities, businesses
and government agencies sponsor annual
Household Hazardous Waste Days when cit-
izens can bring household chemicals to a
central spot for collection, proper treat-
ment, and/or disposal.
some questions & answers
on ground water
Q. How is ground water contaminated?
A. Ground water may become cont-
aminated when rainfall and surface
runoff pass through contaminated
soil. Water dissolves many sub-
stances and can carry particles and
microorganisms with it into the ground water.
Landfills, mining, improperly applied pesti-
cides, improperly stored chemicals and
de-icing salts, leaking underground
storage tanks, improperly installed
or failing septic tanks, and other
surface activities can significantly alter
17
-------
ground water quality. Contamination often
goes undetected for many years.
Q. If I notice a change in the taste, color, or
odor of my well water, whom should I contact?
A. You should contact your county health
department, state agency with ground water
responsibility, and state health department.
These agencies can investigate the cause of the
change in your well water. In addition, infor-
mation on ground water may be obtained by
calling EPA's Safe Drinking Water Hotline
(800/426-4791) or the U.S. Geological Survey
(USGS) (703/648-4460).
Q. What should I do if I suspect that a nearby
facility may be contaminating my well and the
ground water?
A. You should contact the agencies listed
above. Depending on the circumstances, they
may be able to help you. You might also con-
tact the state agencies that issue environmen-
tal permits to the facility; permits can be
reviewed by the public.
Q. Can contaminated ground water be cleaned
up?
A. In some situations, yes. Contaminated
reservoirs that are limited in size may be
cleaned up by pumping water out of the
aquifer for treatment by above-ground treat-
ment systems. Also, methods are under devel-
opment to treat ground water in the subsur-
face, such as biodegradation. However,
ground water cleanup is very difficult, expen-
sive, and less than completely effective. Pre-
venting ground water contamination is more
practical to ensure good water quality.
Q. Are permits required for water supplies and
sewage treatment systems?
A. Yes. State health and environmental
agencies are responsible for certifying the
adequacy of municipal water supplies and
sewage treatment systems.
Q. What is the relationship between ground
water and surface water?
A. Surface water seeps into ground water
during wet weather periods and the reverse
occurs during drought conditions. When
close to the surface, ground water often
becomes surface water in the form of springs,
wetlands, and streams. Contamination of
ground water can pollute surface water and
vice versa.
Q. Are underground storage tanks (USTs)
regulated?
A. Yes. In 1988, EPA issued regulations
setting minimum standards for new tanks and
requiring owners of existing tanks to close,
replace, or upgrade them. Tank owners and
operators are required to meet leak detection
requirements and to show they have financial
resources to pay for cleanups should a leak or
spill occur.
-------
EPA estimates that there are from 5 to 7 mil-
lion USTs nationwide. Most of the USTs hold
petroleum and the rest hold hazardous mate-
rials, used motor oil, or other substances.
Q. Who runs the UST program and who
should be notified if a leak is suspected?
A. State and local governments oversee the
UST program. Report suspected leaks to the
state implementing agency. Contact the
RCRA/Superfund/UST Hotline at 800/424-
9346 for the name, address, and telephone
number of the agency in your state.
-------
quency or location of application, or require
the use of specially trained, certified applica-
tors. EPA also can suspend or cancel the reg-
istration if later information shows that use
of the pesticide poses unacceptable health
effects.
pesticides
Few chemicals have had as much effect or
been the subject of as much controversy in
recent decades as pesticides. Broadly
defined, a pesticide is any agent used to kill
or control undesired insects, weeds, rodents,
fungi, bacteria, or other organisms. Pesti-
cides are used on food and feed crops, lawns
and golf courses, in schools, in the home
and other buildings, and to disinfect swim-
ming pools and hospital equipment. Because
of their wide application, EPA "registers"
(licenses) thousands of pesticide products in
the U.S. No pesticide may legally be sold or
used unless the chemical's label bears an
EPA registration number.
EPA must ensure that these pesticides will
not present unreasonable risks to people,
wildlife, fish, and plants, including endan-
gered species. Under the Federal Insecti-
cide, Fungicide, and Rodenticide Act
(FIFRA) and its 1988 Amendments, the
chemical's benefits must outweigh the risks.
FIFRA gives EPA the authority to limit the
amount of pesticide applied, restrict the fre-
Pesticide registration decisions are based pri-
marily on EPA's evaluation of test data pro-
vided by applicants. Testing is needed to
determine whether a pesticide can cause
adverse effects, including acute toxic reac-
tions, skin and eye irritations, cancers, birth
defects, and reproductive system disorders.
Data on how a pesticide behaves in the envi-
ronment also is required. This information
lets EPA determine whether a chemical poses
a threat to ground water or to "non-target"
species (other than those the pesticide is
meant to control).
Many of us are concerned about food safety
but don't understand how crops are raised
or how our fruits and vegetables arrive at
grocery stores. We seem to have an abun-
dance of fresh produce every day, regardless
of what is "in season." Advances in technolo-
gy over the years have ensured bumper
crops of many fruits and vegetables, and
what we don't grow in this country we
import from abroad.
20
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Pesticides can be registered or re-registered
under FIFRA for use on our food or feed
crops only if "tolerances," or maximum legal
limits, for residues are established under the
Federal Food, Drug, and Cosmetic Act (FFD-
CA). These tolerances help ensure that con-
sumers (especially infants and children) are
not exposed to unsafe levels of pesticides
remaining in or on their food. EPA sets a tol-
erance only if chemical and toxicological
data, as well as residue and food consump-
tion data, show no unreasonable risk to con-
sumers from eating foods containing low-lev-
el residues of the pesticide—even over an
entire lifetime.
EPA also is working to develop and maintain
programs that will protect world health and
the global environment from adverse effects of
pesticide use. A major objective is to improve
foreign countries' abilities to meet our stan-
dards for food safety while improving their
own citizens' health. EPA's Office of Pes-
ticide Programs is working to
prohibit the export of
pesticides that are banned from use in the
U.S. because we may be importing fruits and
vegetables grown and harvested with these
same chemicals. Likewise, use of banned pes-
ticides or improper application may lead to
contaminated topsoil and ground water, and
may have lasting adverse effects on wildlife
in these other countries.
In addition, EPA is making a concerted effort
to safeguard farmworkers in the U.S. through
a combination of educational, regulatory,
and research programs. Many farmworkers
are non-English-speaking immigrants who
are unable to read instructions or warnings
on product labels. These applicators must
contend with many insect and weed species
that have become resistant to insecticides
and herbicides, necessitating higher doses
and increased applications. In the last 40
years, pesticide use has increased 10-fold, yet
crop loss has almost doubled. Many farmers
and ranchers have come to question the
benefit of pesticides and started prac-
ticing alternative farming methods.
Some of these methods are embod-
ied in the concept of sustainable
agriculture, which was officially
recognized by Congress when
the Organic Foods Production
Act was passed as part of the
1990 Farm Bill. This law required the U.S.
Department of Agriculture to develop
national organic certification standards and
labeling requirements for crops that are
21
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organically grown. USDA is being advised by
a National Organic Standards Board composed
of farmers, processors, scientists, and environ-
mentalists. USDA will be publishing regula-
tions that list synthetic and natural substances
and biochemicals that will be permitted or
prohibited in organic production. Any formu-
lated products must be registered with EPA.
As a consumer, you can remove pesticide
residues by thoroughly washing your fruits
and vegetables with soap and water. If you
feel you need to use a pesticide in your home,
first seek advice from local professionals.
Many nurseries, hardware stores, and garden
centers have staff who are knowledgeable
about the best product to use and how to
apply the chemical. You may not need a pes-
ticide at all—sometimes cleaning or removal
of objects attracting a "pest" are all that is
necessary. Take special precautions to apply
the chemical exactly according to the label
instructions. Wear protective clothing indi-
cated on the label over hands and face and
keep all containers isolated from children or
pets. Close off rooms to children and pets
when a pesticide has been applied, and never
use a pesticide close to your face.
Outdoors, be aware that pesticides also can
kill many beneficial insects as well as birds
and squirrels. Some chemicals are unusually
persistent, meaning residues are left in the
environment for long periods of time, even
years. Watch for "Household Hazardous
Waste Disposal Days" in your community to
bring any unused amounts or empty contain-
ers for proper disposal. Because of their
inherent nature, all pesticides, including
home, lawn, and garden pesticides, are
potentially toxic and should be used with the
utmost care.
some questions & answers
on pesticides
Q. Are there any alternatives to using pesti-
cides?
A. Yes. Scientists have begun to manage,
rather than try to eradicate, certain species
using Integrated Pest Management (IPM).
IPM uses a combination of biological, cultural,
and genetic control methods, with use of pes-
ticides as the last resort. Understanding a
species' life cycle is essential to reduce the use
of pesticides. Population explosions can be
prevented and reptiles, birds, bats, and preda-
tor insects used as natural pest controls. A
sustainable farm ecosystem provides habitat
for a multitude of beneficial organisms which
maintain the pest-predator balance.
Q. What natural controls can I use in my gar-
den?
A. Many garden shops and nurseries have
resident experts on this topic, as do county
extension services. Some common methods
include planting marigolds to repel asparagus
beetles. Beer or vinegar in a shallow pan readi-
ly attracts and traps slugs and snails. Gypsy
moths on oak and ornamental trees can be
22
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controlled by a common bacterial spray
applied at the hatching and early larval stages
(a form of IPM). In addition, several soaps are
on the market that are pest-specific and
biodegradable.
Q. How can I get rid of cockroaches in my
kitchen?
A. Mix equal parts of powdered sugar and
powdered boric acid, obtainable from any
hardware store. Sprinkle in corners and along
baseboards. Find points of entry and seal
them off. Store food in sealed containers and
keep the kitchen clean. At night, drain your
sink and wipe dry. Cockroaches are depen-
dent on water, so check for small leaks under
the sink and seal.
Q. What does organically grown mean?
A. Growing organically is an alternative
approach that views the farm as an agro-
ecosystem. The key principle is biodiversity,
first accomplished by building a balanced, fer-
tile soil rich in microorganisms. This concept
of "feeding the soil, not the plant" imparts
resistance and vigor to the crops grown. A
diversity of crops are grown in a long period of
rotation, particularly grasses and legumes for
animal forage and green manures. Such rota-
tions break pest life cycles, improve soil fertili-
ty, and reduce soil erosion. In addition, the
natural resources on the farm such as forests,
wetlands, and meadows are viewed as critical
resources for climate and water management
and provide habitat for indigenous species.
Certified organic crops can be harvested after
three continuous years since the last applica-
tion of a prohibited pesticide or fertilizer. But
organically grown does not mean "no spray."
Farmers can use naturally derived pesticides
that break down quickly in the environment;
some wash off with rain. Other synthetically
derived materials that can be used include
toxins from bacteria, soaps, fish emulsions,
vitamins, minerals, and certain medicines for
livestock. In practice, livestock must be fed
organically grown grains and forages, and can
receive no hormones, antibiotics, or medica-
tions that increase growth or production.
Q. What pesticides are banned in the U.S.?
A. Over the years, EPA has banned 42 dif-
ferent pesticides, including aldrin, DDT,
dinoseb, and vinyl chloride. Others are called
restricted-use, meaning they must be applied
by or under the direct supervision of a certi-
fied applicator. Banned or restricted chemi-
cals are acutely toxic to farmworkers and
applicators, as well as various mammals,
birds, and aquatic animals, and have environ-
mental effects long after suspended use.
23
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follow proper disposal practices to protect
our environment.
Currently operating industries that produce
hazardous wastes are regulated by the provi-
sions of the Resource Conservation and
Recovery Act (RCRA). One of the RCRA
hazardous waste
Today's world is complex — sophisticated
technologies produce consumer goods rang-
ing from cars to cleaning fluids. Many of
these processes generate hazardous wastes
of one sort or another. Hazardous wastes are
specifically identified by EPA because they
have characteristics that make them poten-
tially dangerous. Hazardous wastes include
chemicals that are corrosive, flammable,
reactive, or toxic. Hazardous wastes may be
by-products of manufacturing processes or
discarded consumer products, such as house-
hold cleaning fluids, paints, and batteries.
Once generated, hazardous wastes require
proper storage, treatment, and disposal.
While major industries must follow specific
regulatory requirements for handling haz-
ardous wastes, many companies are institut-
ing pollution prevention techniques that
reduce the amounts of wastes that are gener-
ated. Individual citizens also should try to
reduce the amounts of chemicals used.
When we must discard hazardous materials
such as pesticides and old paint, we should
requirements is the cradle-to-grave reporting
system that tracks hazardous wastes from the
factory through transportation, treatment, and
disposal. Most states have received authority
from EPA to regulate and enforce RCRA; EPA
controls hazardous waste storage, treatment,
and disposal in those states that do not have
this authority.
In addition to active facilities regulated under
RCRA, some sites have abandoned hazardous
wastes for which ownership is unclear or
unknown. In these situations, control and
cleanup is possible through the Comprehen-
sive Environmental Response, Compensa-
tion, and Liability Act (CERCLA), com-
monly known as Superfund. Under the
Superfund program, EPA has the authority to
clean up the nation's worst hazardous waste
sites using money from a trust fund support-
ed primarily from a tax on chemical feed-
stocks used by manufacturers. Those sites
have been placed on EPA's National Priori-
ties List (NPL). Companies or individuals
responsible for the wastes are identified by
24
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EPA, if possible, and made to pay for the
cleanups.
Your participation as a concerned community
member is an integral part of the Superfund
cleanup process. The Superfund Amend-
ments and Reauthorization Act (SARA) of
1986 specifically provided for public partici-
pation in selecting the appropriate remedies
for site contamination problems. EPA assigns
staff to each Superfund site to work with the
local community to reach decisions related to
site cleanup activities. EPA is required to
make site-related information accessible to
the public. In most cases, this information
and records of EPA decisions about the site
are placed in the public library or town hall.
Communities near Superfund sites have numer-
ous resources available to them for meaningful
participation in the management and cleanup of
the site. For example, technical assistance grants
(TAGs) from EPA are authorized under SARA.
These grants allow communities to hire experts
,K
i N>^ to help citizens understand the
technical aspects of haz-
ardous waste problems.
some questions & answers
on hazardous waste
Q. What should I do if I suspect hazardous
waste dumping?
A. Contact the National Response Center
at 1-800-424-8802 if you detect signs of illegal
dumping such as:
• drums in the woods, on roadsides or
abandoned property, in empty buildings
or city or county landfills;
• odors that smell like turpentine, paint,
fingernail polish, glue, rotten eggs, or
any unfamiliar chemical odor;
• discolored soil with dead vegetation
along roadsides, in abandoned lots or
fields, around vacant buildings, or
beside streams and rivers;
• abandoned warehouses or factories with
leaking drums or waste-like material;
sludge-like appearance or ooze on
the ground.
?^)
25
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Q. Are hazardous substances regulated under
RCRA?
A. No. RCRA only regulates hazardous sub-
stances once they become wastes, but some
hazardous substances are regulated under the
Toxic Substances Control Act (TSCA) or by
the Occupational Safety and Health Admin-
istration (OSHA). Many hazardous chemicals
must be reported to federal, state, and local
officials under the Emergency Planning and
Community Right-to-Know Act (EPCRA).
Q. Can hazardous wastes be incinerated safe-
ly? Does incineration make hazardous wastes
non-hazardous?
A. A hazardous waste incinerator that is
properly designed and operated to meet per-
formance standards set by EPA can safely and
effectively reduce or destroy a wide variety of
hazardous wastes. Depending on the compo-
sition of the hazardous wastes, some wastes
can be rendered non-hazardous. The residues
left after incineration, such as ash and materi-
als from air pollution control equipment,
must be properly managed and disposed of in
accordance with EPA requirements.
Q. Why are new commercial incinerators
being built?
A. Federal legislation mandated each state
to provide, by October 17, 1989 a 20-year
plan to assure that the state had the capacity
to dispose of hazardous and solid wastes gen-
erated within its borders. Most hazardous
wastes cannot be landfilled and some must be
incinerated because they have no other dis-
posal method. In addition, many states simply
have no available landfill space, and so
municipal solid waste, including household
garbage, must be incinerated. But many new
facilities are waste-to-energy plants which
convert the heat from combustion into elec-
tricity for the community, an added bonus to
eliminating tons of trash.
Q. How are citizens assured that permitted haz-
ardous waste facilities are complying with the law?
A. Hazardous waste inspectors have the right
to enter a facility at any reasonable time for an
inspection, which may be unannounced. Facili-
ties are inspected for compliance with laws and
regulations, as well as with the specific condi-
tions of their individual permits. When viola-
tions are found, they are followed by appropri-
ate actions, ranging from issuance of a non-
compliance notice to initiation of a criminal
investigation. If you have reason to believe that
a hazardous waste facility is not complying
with the law, call your state environmental
office with responsibility for hazardous waste.
A complaint filed with the agency may result in
an unannounced inspection of the facility.
Q. What is the difference between hazardous
waste management and treatment?
A. Hazardous waste management refers to
the precautions taken to reduce the dangers of
handling or disposing of hazardous wastes.
26
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Hazardous waste treatment refers to practices
which render the wastes non-hazardous or
less harmful. Treatment methods include neu-
tralization, such as mixing acids with bases
to make their pH more like that of water, bio-
logical treatment to break the waste down into
simpler compounds, and incineration.
Q. What is being done to reduce hazardous
wastes?
A. Better manufacturing processes and work-
er training are reducing quantities used and
non-hazardous or less hazardous ingredients
are being substituted in processes. Some wastes
are refined and recycled; others are immobi-
lized so they cannot be released into the envi-
ronment. Another important way is to design
well-managed, well-regulated hazardous waste
management facilities with proper state permits.
Q. Officials in my area have just declared an
old abandoned property in my community a
Superfund site. What does that mean?
A. Under CERCLA, abandoned hazardous
waste sites that pose an immediate threat can
be cleaned up under emergency response and
removal programs. Sites that do not pose an
immediate danger but have significant contam-
ination may be cleaned up by responsible par-
ties or under federal or state investigation and
cleanup programs.
Q. Shouldn't the folks who put the chemicals in
the dump pay for the cleanup?
A. Yes. Using Superfund enforcement
authority, EPA locates the owners, operators,
generators, and transporters and negotiates for
the cleanup. Those who contributed only mini-
mal amounts or low-toxicity wastes (de min-
im is parties) can "cash out", putting their pro-
portional share of costs into a trust fund for the
cleanup. Or EPA can order non-cooperative
parties to conduct the work. Cleanup doesn't
have to wait until legal and financial issues are
resolved. EPA can stabilize the site and then
pursue responsible parties to recover costs and
commit to long-term remedial actions.
Q. How do I dispose of household hazardous
wastes, such as old pesticides, paints, acids, clean-
ers, and used oils?
A. Watch your newspaper for local "House-
hold Hazardous Waste Disposal Days." Often
local organizations or businesses, in coopera-
tion with state environmental agencies, will
sponsor free disposal if you bring your materi-
als to a specified collection site. Public service
announcements on television and radio also
help to promote such events. In addition, some
local gas stations recycle used motor oils and
old automobile batteries.
The best way to deal with household haz-
ardous wastes is to purchase products wisely.
Estimate your needs accurately and buy the
smallest quantity possible.
27
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solid waste
cling efforts and created a demand for "post-
consumer" materials.
But the early days of the "sanitary" landfill
fouled ground water, soil, surface water,
and air because of improper disposal meth-
ods. Engineers have since designed new liners
Solid waste continues to receive a great deal
of media attention across the country as cities
and counties deal with the lack of available
space to dispose of household garbage and
municipal solid waste. How to manage our
wastes has been a problem for decades. In the
early 1960s, cities and towns across the coun-
try practiced open air burning of trash. In
response, Congress passed the Solid Waste
Disposal Act in 1965 as part of the amend-
ments to the Clean Air Act. This was the first
federal law that required environmentally
sound methods for disposal of household,
municipal, commercial, and industrial waste.
In 1970, Congress amended this law and
passed the Resource Recovery Act, the first
nationwide recycling initiative. Federal agen-
cies were recycling high-grade white paper
and newsprint with the slogan, "Use it Again
Sam." The beverage industry at this time
switched from tri-metal to the lighter but
more expensive aluminum, primarily to save
transportation and equipment costs. That
switch paved the way for other major recy-
and leachate treatment systems to prevent
environmental degradation. Today, landfill
space is at a premium. Other options include
incineration, recycling, source reduction,
and biodegradation as viable alternatives to
solid waste disposal.
Each of us is part of the problem as well as
the solution. From gum wrappers to used
cars, we exert our personal choices in what
we purchase, how we use the product, and
how we dispose of the waste.
Simple solutions include purchasing goods
with less packaging, maintaining and repair-
ing household appliances, and carrying
reusable shopping bags. Recycling newspa-
pers, aluminum cans, glass, and some plastics
is becoming more common at schools and the
workplace. Even if your town does not have a
recycling program, you can effectively reduce
waste while conserving raw materials and
energy. Yard and food wastes make up at
least 25% of materials heading for landfills.
But making compost of these wastes replaces
28
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soil nutrients and commercial fertilizers when
placed in the garden. Removal of these mate-
rials from household garbage also extends the
useful life of existing landfills.
some questions & answers
about solid waste & waste
disposal
Q. How do we dispose of solid wastes?
A. In 1990, more than 67% of our wastes
were landfilled. We recycled about 17% and
the balance (16%) was incinerated.
Q. How is out-of-state garbage regulated?
A. Current legal readings of interstate
commerce laws suggest that a state, in gener-
al, cannot flatly refuse to accept
out-of-state waste. In oth-
er words, wastes export-
ed to your state may
be restricted only
to the degree in-
state wastes are
restricted. For
example, if in-
state or county
mandatory recycling
laws are enacted to
require separation of
waste into recyclable
and non-recyclable
components, out-of-
state waste can be
restricted in a similar
manner.
Q. What goes into a solid waste landfill? What
happens to it over time?
A. In 1990, on average, the solid waste that
went into a typical municipal landfill was
estimated to contain 38% paper; 18% yard
waste (trimmings, leaves, etc.); 8% metals;
7% food; 7% glass; 6% wood; 8% plastics;
and 8% miscellaneous. Biodegradable materi-
als may decompose over many years, while
non-degradable materials, such as glass and
most plastics, remain at the site.
Q. When rainfall leaches through an unlined
landfill, how is ground water affected?
A. Leachate can contain a variety of sub-
stances depending upon the contents of the
waste, including metals, organic compounds,
suspended particles, and bacteria. If toxic
wastes are deposited in the land-
fill, the leachate can contain tox-
ic chemicals that are hazardous
even at low levels. Many of these
substances pollute the ground
water.
Most leachates are collected at per-
mitted landfills and treated at local
sewage treatment plants. Treatment
can include aeration to eliminate
volatile compounds and gases and
to enhance oxygen-dependent
breakdown of organics, settling or
filtering to remove sediment, and
other treatment to stimulate chemi-
cal or microbial breakdown of con-
taminants.
29
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Q. Are hazardous wastes disposed of in land-
fills?
A. Both hazardous and solid waste regula-
tions prohibit disposal of hazardous waste in
a landfill that is not specifically designed and
permitted. Nevertheless, we generate a great
deal of hazardous wastes in our homes that
we unwittingly dispose of daily. For example,
pesticides and paint thinners may be tossed
in trash taken to the landfill. Most businesses
are regulated and monitored for their haz-
ardous waste disposal practices. Although
some people and companies illegally put haz-
ardous wastes in landfills, heavy penalties
including fines and jail sentences make illegal
disposal very unattractive.
Q. How do we .know that infectious hospital
wastes are not going into landfills?
A. Only non-infectious hospital waste can
be legally dumped in a non-hazardous waste
landfill. Hospitals operate under regulations
that specify disposal requirements for med-
ical wastes. Violations of these rules can sub-
ject hospitals to substantial penalties.
Q. How is the volume of waste entering a
landfill regulated?
A. Generally, the volume of waste accepted
is set in the terms of the landfill permit, usu-
ally as tons per month. The landfill operator
weighs the waste upon arrival, and tonnage
reports must be submitted on a periodic basis
to state environmental agencies.
Q. How dose can a landfill be to my house?
A. State and local regulations may require
that a landfill be a minimum distance from an
occupied dwelling unless written permission
to be closer is given by the occupant. A com-
mon distance is 500 feet.
Q. Won't a landfill attract pests such as rats,
flies, and cockroaches?
A. At the end of each day, a landfill is
required to be covered with a layer of soil to
deter scavenging animals. If the cover is prop-
erly applied, these pests should be less of a
problem.
Q. How will a landfill affect my well water?
Who can check my water to be sure it remains
unpolluted?
A. Some state and local regulations require
a landfill to be located a minimum distance
(in some states, at least 1,200 feet) from a
well water supply. Monitoring wells
required around the landfill aid in the detec-
tion of ground water contamination before it
reaches the drinking water well. Monitoring
reports are usually available upon request
from the county government, state environ-
mental agency, or your local health depart-
ment, or county extension service.
If a well owner desires testing of a well, a cer-
tified laboratory should be hired to run the
tests. Names of such laboratories can be
obtained from your local health department.
30
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Q. How is a landfill closed? Are there any pos-
sible uses or restrictions for a closed landfill?
A. A landfill that reaches capacity is cov-
ered with a multi-layer, protective cap and
planted with grasses and other ground covers.
The owner must then conduct post-closure
care, which includes monitoring of ground
water, landfill gases, and leachate collection
systems. Monitoring may be required for 30
years following closure.
Few restrictions exist on how the property
over a closed landfill can be used. Parks and
golf courses are examples of possible uses.
Construction of large buildings is usually
avoided because of settling that occurs during
biodegradation and compaction of the waste.
31
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bringing people of all races, cultures, incomes,
and educational levels into the mainstream of
environmental laws, regulations, and policies.
A major public health issue today is exposure to
lead. Elimination of leaded gasoline has reduced
air-borne exposure for the general population.
public health
Society's earliest historical records reveal that
public health problems have been associated
with life in large communal groups. Early writ-
ers documented such epidemic diseases as
cholera, plague, and polio, and attributed them
to crowded living conditions in cities and vil-
lages. Epidemics were later traced by scientists
and physicians to lack of sanitation and dis-
ease-carrying organisms. With these discover-
ies, public health agencies emerged to prevent
such occurrences by building sewers and water
purification plants. Innoculation campaigns
continue through modern times.
Public health research today addresses the more
difficult cause and effect relationships behind
cancer, leukemia, and birth defects. Citizen par-
ticipation in these investigative activities through
questionnaires and providing illness and lifestyle
information greatly assists in the effort. But
minority and low-income communities are often
characterized by poor health and lack of educa-
tion, two factors that exacerbate exposure to
toxic substances. EPA has committed to
address environmental justice concerns by
But threats remain for children, who are most
susceptible to the adverse effects of lead. In
many homes, lead from old pipes and solder
may dissolve into the water. If you have plumb-
ing that was installed before the early 1950s,
you can reduce your exposure to lead by letting
the tap run for a few minutes. Use only cold
water for cooking or drinking.
Another avenue of exposure to small children,
and perhaps the greatest, is through lead paint
in older housing. Small children tend to stick
almost anything in their mouths. If a child
swallows chips of lead-based paint, exposure to
lead is increased. To help protect small chil-
dren, the Consumer Product Safety Commis-
sion no longer allows the sale of paints with
high levels of lead. The Centers for Disease
Control and Prevention suggests that paint
already existing inside and outside of buildings
be tested for lead. If the lead content is high,
the paint should be removed in a safe manner
and replaced with a lead-free paint.
32
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State health departments often oversee public
water supplies and private septic tanks in
addition to duties associated with food safety.
Many states maintain registries of diseases such
as cancer and birth defects. Studying patterns
of incidence may help identify causes and
allow public health agencies to target resources
on high risk diseases, behaviors, or locations.
The Centers for Disease Control and Preven-
tion (CDC), an arm of the U.S. Department of
Health and Human Services (HHS), conducts
research on the causes of disease and tracks the
progression of infectious and other diseases.
The Agency for Toxic Substances and Dis-
ease Registry (ATSDR) is a part of the Public
Health Service in HHS. The mission of ATSDR
is to protect the public from exposure to haz-
ardous substances in the environment. See
Government Agencies section.
some questions & answers
on public health
Q. Where can I find information about disease
rates in my community?
A. In many states, the state health depart-
ment may have a registry of diseases such as
cancer. A call to your state health department
should let you know if the registry can give you
information specific to your community. Your
local health agency may also be aware of
research that may have been performed in your
community by universities or other researchers.
Q. Do chemical companies and other industries
keep track of employees' cancer and respiratory ill-
nesses and deaths?
A. Many large companies do. Some compa-
nies keep extremely detailed medical records
on employees. Larger companies may have an
epidemiologist who studies the incidence of
disease in workers. Smaller companies may not
have as detailed medical records on employees
and may not keep them for long.
Q. Whom do I call about suspected contamina-
tion of my public water supply?
A. The water pollution control agency or
public works department in your county or
state has an office dealing with the safety of
public water supplies. Ask them for the office
to contact with questions and concerns.
33
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The NRC is the primary communications cen-
ter for reporting major chemical and oil spills
and other hazardous substances into the envi-
ronment. Operated by the U.S. Coast Guard
since 1972, the NRC receives reports of trans-
portation emergencies, oil and hazardous sub-
stance spills, and other chemical accidents.
connnmarilty safety
Every day, oil and hazardous substances are
spilled or released into our harbors and water-
ways, onto the ground, and into the air.
Some of these incidents are relatively minor,
some cause disruptions in the community,
and others cause serious damage and take
lives. Most such incidents are handled at the
local level, by fire fighters, police, and emer-
gency medical teams. In many cases, the
owner or operator of a facility will handle the
cleanup or provide help to local responders,
sometimes in the form of technical advice or a
trained hazardous materials team.
Some serious incidents, however, warrant acti-
vation of the National Response System. When
the person in charge of a facility or vessel con-
taining a hazardous substance becomes aware
of a release in a reportable quantity, that person
must notify the National Response Center
(NRC) at 1-800-424-8802. Reportable quanti-
ties have been established for 779 hazardous
substances. Similarly, a discharge or spill of oil
that causes a discoloration or "sheen" on the
surface of the water must be reported.
The NRC relays information to a predesignat-
ed federal On-Scene Coordinator (OSC),
based on the incident's geographical location.
Coastal and tidal waters fall under Coast
Guard jurisdiction; EPA manages inland
waterways and spills on land; the Depart-
ments of Defense and Energy manage inci-
dents on their respective properties.
When the federal OSC receives a call, he is
backed up by Special Forces: the U.S. Coast
Guard's National Strike Force (NSF) com-
posed of three teams: Atlantic, Pacific, and
Gulf coasts; EPA's Environmental Response
Team; and the NOAA Scientfic Support
Coordinators. EPA's 10 regional offices each
have a team of OSCs and direct responders
who can access any of the Special Forces for
assistance. The OSC in turn contacts state
and local agencies to coordinate their role.
State Emergency Response Commissions
(SERCs) administer community safety pro-
grams and appoint Local Emergency Plan-
ning Committees (LEPCs) in all major cities
34
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and every county. LEPC members include
state or local officials, police, fire, public
health, environmental, hospital, and trans-
portation officials, as well as community
groups and the media. The Emergency Pre-
paredness Coordinator at the county level is
usually the chairperson of the LEPC and has a
listed telephone number, although large cities
frequently have a separate LEPC.
The key statute directing all of these federal
and state activities is the Comprehensive
Environmental Response, Compensation,
and Liability
Act of 1980
(CERCLA).
When CERCLA
was amended in
1986 by the
Superfund
Amendments i
and Reautho-
rization Act (SARA),
Title III of SARA authorized the Emergency
Planning and Community Right-to-Know
Act (EPCRA). This law is based on the
premise that citizens have a right to know
about chemicals in their communities.
EPCRA has two main purposes: to encourage
planning for responses to accidents, and to
provide the public and the government with
information about possible chemical hazards
in communities.
Section 313 of EPCRA requires certain manu-
facturers (those in Standard Industrial Clas-
sification (SIC) Codes 20-39) to report to
EPA and the states the amounts of over 300
toxic chemicals and 20 chemical categories
that they release directly to air, water, or land,
inject underground, or transfer to off-site facil-
ities. In addition, EPCRA specifies that EPA
must compile these reports into an annual
inventory of releases and transfers — the Tox-
ic Release Inventory (TRI) — and make that
inventory available to the public.
In October of 1990, Congress passed the Pol-
lution Prevention Act, requiring all TRI facili-
ties to provide information on pollution pre-
vention and
recycling
efforts for
each
chemical
on their
reporting
forms beginning
with the 1991 reporting year. Information
includes quantities recycled, source reduction
practices, and changes in production. EPA
recently added two chemical categories and 32
additional chemicals that require reporting.
By the end of 1994, EPA will add 313 priority
pollutants to the list, including acutely toxic
chemicals, flammable gases and liquids,
explosives, and pesticides. Small-source
exemptions will be proposed at that time. In
early 1995, TRI reporting will be extended to
treatment plants for drinking water, utilities,
mining companies, propane retailers, and oth-
35
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er nonmanufacturing industries associated
with significant chemical releases.
These right-to-know efforts have been enhanced
by a 1994 Executive Order committing EPA
and other federal agencies to environmental
justice for minority and low-income popula-
tions. Efforts to educate and empower citizen
groups, native Americans, and new immigrants
to our shores will ensure early participation in
environmental decision making, form partner-
ships, and promote sustainable communities.
Another law intended to improve public safety
is the Hazardous Materials Transportation
Uniform Safety Act (HMTUSA). Under this
law, local emergency planners and responders
can receive grants and technical assistance from
the federal government to help communities
deal with the risks from transporting hazardous
materials. HMTUSA is aimed at improving
transportation safety by ensuring that haz-
ardous material manufacturers, transportation
companies, and community safety officials
reduce the threat of chemical accidents on our
nation's highways, railroads, and waterways.
some questions & answers
on community safety
Q. How do I know what chemicals are used or
made in an industrial plant near my home and
what amounts are being stored there?
A. Ask the plant for a copy of EPCRA Sec-
tion 311 and 312 data submitted to the LEPC
and an explanation of the codes used. Or, ask
the LEPC for this information.
Q. In case of an accident at a chemical plant,
who will warn me and my family about toxic
emissions and provide for appropriate protection?
A. Your LEPC has developed warning sys-
tems, evacuation plans, and shelter-in-place
instructions. You can also ask the local plant
to explain how their emergency response
plans mesh with the LEPC. The plant must
report immediately all incidents of chemical
releases to the NRC, the SERC, and the LEPC.
Q. Are visible, continuous emissions or odors
from an industrial plant harmful?
A. To identify whether specific emissions
are harmful, you should ask the plant manag-
er about emissions and request a copy of the
plant's SARA Section 313 data. Or, ask your
SERC for the data. EPA's Chemical Emer-
gency Preparedness and Prevention Office
also may be able to help. After identifying the
chemicals and volumes being emitted, Mater-
ial Safety Data Sheets (MSDS) may help
you to determine risk. Remember that risk
depends on the dose received; Section 313
data are reported annually and can not be
used alone to accurately determine exposure
or dose, or their consequences.
-------
Q. Where do I get the MSDS for the emissions
in question? Can I understand an MSDS? Isn't it
too technical?
A. An MSDS is a fact sheet that describes
how to use, handle, and dispose of a specific
chemical (see the Glossary). The plant that
manufactures, stores, or discharges the
chemical must submit an MSDS to the LEPC.
Ask the LEPC or the plant safety manager for
help in interpreting the information.
Q. What is the difference between hazardous
chemicals and toxic chemicals?
A. Hazardous chemicals are a much broader
category and may be toxic, flammable, corro-
sive, explosive, or environmentally harmful.
Substances which are toxic can cause severe ill-
ness, poisoning, or death when ingested,
inhaled, or absorbed by living organisms. Toxic
chemicals are one type of hazardous chemical.
Q. If I am exposed to a small amount of a tox-
ic chemical once, are my chances of getting can-
cer the same as someone who is exposed to the
chemical everyday?
A. Generally, no. Exposure relates both to
the amount and frequency of coming into
contact with a specific chemical. Federal
agencies have established certain exposure
limits for workers that prevent them from
becoming ill. Repeated exposure to low levels
of a mix of chemicals may be linked to health
problems, while a single incident at a higher
level may be below a toxic threshold.
Q. What processes can be used to reduce or
eliminate the hazards presented by the storage
and transportation of large volumes of hazardous
chemicals?
A. There are some technologies, called con-
tinuing or closed-loop processes, that convert
hazardous or dangerous compounds into
more stable or less toxic substances in a sin-
gle continuous system. That is, some chemi-
cals are immediately converted or recombined
in the manufacturing process to reduce risks
that would otherwise be posed by transporta-
tion and storage. Some companies also are
using just-in-time delivery to reduce the need
to store large volumes of chemicals.
Q. Where can I go to get more information
about chemical risks?
A. Ask EPA's Office of Research and Devel-
opment, your LEPC, environmental or con-
sumer activists, or any of several other organi-
zations in the directory at the end of this Guide.
37
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health &
those that best reduce risk. Some manage-
ment decisions may lead to elimination of
the risk altogether. Since precise estimates of
risk often are not possible, policy makers
may use qualitative risk assessments to iden-
tify substances or activities that pose a risk
to our health and the environment. With
good data, quantitative risk assessments can
risk
Risk is a description of the chance that some
hazard to health or the environment will
occur. For example, insurance companies
commonly use risk to assess the probability
that a driver will or will not have an acci-
dent. While society has always assessed risk,
it was not until recently that risk has been
discussed as a policy-making tool for health
and environmental issues.
Risk assessment is an evaluation of the
potential for a problem to occur and the sci-
entific analysis of its threat to public health
and the environment. The evaluation may
include toxicology, epidemiology, and expo-
sure data and provides a systematic analysis
of risks. While risk assessments are based on
science, they are rarely precise, since
absolute data almost never exist.
In attempting to control risks, environmental
managers examine the options and select
go a step further to identify how much of a
substance or activity may cause a harmful
effect. For example, exposure to 10 grams of
a chemical compound may create a specific
health problem, or the loss of 20% of the
trees in the Amazon basin may cause a num-
ber of severe problems for wildlife.
Risk analysis is used by agencies, industries,
and individuals every day to identify health
and environmental problems in our society.
Regulatory agencies use risk assessment as a
tool to evaluate health and safety issues such
as food safety and workplace exposure.
Chemicals or practices that are identified as
very risky receive more management atten-
tion then those perceived to be less risky.
Risk communication is the exchange of
information between interested parties and is
a tool for understanding many environmen-
tal risks. To enhance public outreach activi-
38
-------
ties about risk, EPA is working toward envi-
ronmental equity so that no segment of the
population, regardless of race, national ori-
gin, or income bears a disproportionate
share of exposure to environmental pollu-
tants. For information on how agencies use
risk assessments regarding specific public
hazards, you should call EPA's Office of Pol-
icy, Planning, and Evaluation or your state
agencies that deal with health and environ-
mental protection.
some questions & answers
on health & environmen-
tal risk
Q. Can a risk assessment tell me
exactly what to do about a specific
hazard?
A. No. Risk assessments are
often imprecise in that they draw
upon available information about
the hazard, apply scientific princi-
ples, and provide guidance. But risk assess-
ments can help you identify hazards. You
can use that information to decide what
steps, if any, to take to reduce the hazard.
Q. Why use risk assessment if it can not pro-
vide absolute answers?
A. Because so many hazards exist in
everyday life, risk assessment must be used
as a tool for evaluating the most pressing or
most hazardous. Over time we find that
some activities are more hazardous than
once perceived (smoking cigarettes or man-
ufacturing PCBs). Once the evidence is eval-
uated, these practices may be either stopped
or limited. An assessment on an unknown
chemical or practice attempts to project
what the consequences might be without
waiting for final proof.
Q. Is zero risk possible? Can we eliminate all
risk?
A. No. We live in a world with many
risks, both natural and manmade, and many
we take voluntarily. We can develop prac-
tices that reduce, but not totally eliminate,
daily risks. For example, U.S. motor vehicle
laws mandate that we drive on the right side
of the road. This reduces, but does not elim-
inate, auto accidents. Similarly, public
health and environmental officials, together
with industries and the public,
must seek to reduce
industrial accidents
and societal hazards
that contribute to
involuntary
risk.
39
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caught. We use enforcement actions to compel
a person or company to comply. These actions
include civil and criminal prosecution in
courts, administrative orders, and other forms
of action that take place after a violation has
occurred. Although directed at a specific viola-
tor, enforcement causes a deterrent effect that
motivates other people to comply.
enforcernent
Environmental enforcement is a comprehen-
sive program involving federal, state, local,
and tribal governments working together to
enforce federal environmental laws. These
laws set standards for what individuals and
institutions must do to control or prevent pol-
lution. Without enforcement, environmental
laws would be just words on paper.
The term "enforcement" covers all efforts to
encourage compliance with environmental
laws. "Compliance" refers to the condition that
exists when a person or company fully obeys
the law. An environmental law without com-
pliance would mean that pollution problems
would continue and grow worse. EPA has an
enforcement program to make sure that laws
get the results that Congress and the public
want.This program will include environmen-
tal justice concerns in all compliance efforts.
The fundamental aim of enforcement is to con-
vince those who are regulated that it is better to
comply quickly than to wait until they are
some questions & answers
on health & environmen-
tal risk:
Q. Is EPA responsible for every environmental
action?
A. No. Virtually every federal environmen-
tal law allows state governments to develop
their own programs to carry out the law.
When EPA has determined that the state pro-
gram meets federal requirements, EPA
approves the program. Such programs are
called "delegated" or "approved" programs.
Under this arrangement, the states apply the
national standards and regulations by issuing
and enforcing their own rules and permits.
State governments carry out the lion's share
of environmental enforcement actions and
perform a majority of the inspections.
Q. What is the enforcement relationship
between EPA and the states?
40
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A. EPA strives to work out an effective
enforcement partnership with each state. This is
accomplished through enforcement agreements
with the separate state agencies. These agree-
ments usually define the characteristics of a
good program, using the same criteria by which
EPA judges its own performance. The agree-
ments also spell out the circumstances under
which EPA will step in and take enforcement
action in an approved state program (called
"overfiling"). The most common reasons are:
the state asked for help; the state's enforcement
response was not timely and appropriate
(according to EPA guidance); the case involves
national precedents; or there is a violation of an
EPA order or settlement agreement.
Q. What is the range of enforcement responses?
A. EPA's policy is to respond to every viola-
tion in some way, and the type of response will
be in keeping with the seriousness
and circumstances of the violation.
EPA has a range of options when
contemplating an enforcement
response against a violator, and
these options differ from one
law to another:
• Informal response—adminis-
trative actions that are
advisory in nature, such as
a notice of noncompliance
or a warning letter. In these
actions, EPA advises the
manager of a facility what
violation was found, what
corrective action should be taken, and by
what date. Informal responses carry no
penalty or power to compel actions, but if
they are ignored, they can lead to more
severe actions.
Formal administrative responses—legal
orders that are independently enforceable,
and which may require the recipient to
take some corrective or remedial action
within a specified period of time, to refrain
from certain behavior or to require future
compliance. These administrative actions
are strong enforcement tools. If a person
violates an order, EPA may go to U.S. fed-
eral court to force compliance. Administra-
tive actions are handled under EPA's inter-
nal administrative litigation system, which
is comparable to any court system except
that administrative law judges preside.
Civil judicial responses—formal lawsuits
brought in U.S. federal court by the
Department of Justice (DOJ) at EPA's
request. They are normally used
against the more serious or recalci-
trant violators of environmental
laws or to seek prompt cor-
rection of imminent haz-
ards. Civiljudicial
cases generally
result in penalties
and court orders requiring
correction of the violation
and specific actions to
prevent future viola-
41
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tions.
• Criminal judicial responses—used when a
person or company has knowingly and
willfully violated the law. In a criminal
case, the DOJ prosecutes an alleged viola-
tor in federal court, seeking criminal sanc-
tions including fines and imprisonment.
Criminal actions are often used to respond
to flagrant, intentional disregard for envi-
ronmental laws (such as "midnight dump-
ing" of hazardous wastes) and deliberate
falsification of documents or records.
Q. What happens as a result of an enforcement
case?
A. Most importantly, the enforcement action
results in a remedy to the violations, but also
serves as a deterrent to others. In many cases,
EPA seeks both a remedy and a penalty. These
may result from either administrative or judi-
cial cases, and either from a settlement or from
a final decision in court or an administrative
action. The remedy includes returning the vio-
lating facility to compliance and sometimes
other remedial actions:
• Compliance—the violator will be required
to comply with the law. If the violation
has not already been corrected, the viola-
tor is usually placed under a court-
ordered schedule, with severe penalties
for failure to comply with the order.
• Benefit projects—in some cases, the viola-
tor is permitted to carry out a supple-
mental environmental project that will
yield environmental benefits partly offset-
ting the harmful effects of the violation.
• Penalties—the violator is required to pay
a cash penalty that is not tax deductible
(in criminal cases, a fine). The penalty
includes sanctions intended to deter the
violator from falling into noncompliance
again and to deter others from similar
violations.
• Imprisonment—in criminal cases, the vio-
lator may be sentenced to jail time or
placed on probation.
• Contractor listing—a facility that has violat-
ed the Clean Water Act or the Clean Air
Act may be placed on EPA's List of Violat-
ing Facilities. Listed facilities are not eligi-
ble to receive federal contracts, grants, or
loans from EPA or any other federal
agency. Facilities that commit criminal vio-
lations of other environmental statutes may
be subject to possible suspension and/or
debarment from receiving or entering into
EPA or other federal agency contracts.
Q. What is an inspection ?
A. Inspections are the government's main
tool for officially assessing compliance. An
inspection is an examination into the environ-
mental affairs of a single regulated facility, to
determine its compliance with environmental
requirements. Inspection findings become the
basis for a variety of possible actions EPA might
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take to bring the facility into compliance.
Q. How does the EPA decide which facilities to
inspect?
A. While we would like to inspect every reg-
ulated facility on a regular basis, we do not have
the funds or personnel to do so. As a result,
each EPA program has a strategy or policy for
allocating inspections to various segments of the
regulated community and ultimately to particu-
lar facilities. Most inspections are routine, con-
ducted because the facility is within a segment
of the regulated community that has been tar-
geted for inspection. Other inspections are "for
cause," meaning there is some reason to suspect
that an actual violation exists. The stimulus may
be a tip, a citizen's complaint, a self-monitoring
report, or information from the Toxic Release
Inventory (TRI). Inspections may be
announced or unannounced.
Q. Can a citizen file a suit to enforce an envi-
ronmental standard?
A. Yes. The first citizen suit provision
appeared in 1970, when Congress enacted the
Clean Air Act. Specifically, this provision
allowed citizens to sue polluters who violated
certain requirements of the Clean Air Act and to
sue the EPA if we failed to carry out a non-dis-
cretionary duty set forth in the Act. Since 1970,
a citizen suit provision has been included in
almost every federal environmental statute.
Under these statutes, Congress has granted citi-
zens the power to initiate an enforcement
action in federal court in order to ensure ade-
quate protection of the environment. Citizen
suits have proven to be an important tool for
the enforcement of the various environmental
statutes.
Q. How can I recognize a potential pollution
problem?
A. While some pollution is an unfortunate
consequence of modern industrial life, national
and state laws limit the amount and kinds of
pollution allowed. Sometimes a citizen can easi-
ly identify pollution that violates a law and
sometimes we need sophisticated equipment.
EPA encourages the public to "keep their eyes
and ears open" and to contact the appropriate
local, state, and federal authorities whenever
they notice a potential pollution problem.
Q. Whom should I contact to report a pollution
incident?
A. State and local governments have
responsibility for enforcing most environmen-
tal laws in the area where you live. You can
locate them through your telephone directory.
In most communities, the responsible agency
is the city or county health department. At the
state level, an environmental agency carries
out the pollution control laws, whereas an
agriculture agency often handles regulation of
pesticides. If they are unable to help you,
contact the EPA, which principally operates
through 10 Regional Offices. The Public
Affairs office is a good starting point.
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glossary
Acid - A corrosive solution with a pH less
than 7. Vinegar is a common weak acid; bat-
tery acid is much stronger.
Acid Rain - You first need to understand Acid
Deposition: a complex chemical and atmos-
pheric phenomenon that occurs when emis-
sions of sulfur and nitrogen compounds and
other substances are transformed by chemical
processes in the atmosphere, often far from
the original sources, and then deposited on
earth in either wet or dry form. The wet forms
(precipitation) are popularly called "acid rain"
and fall as rain, snow, or fog. The dry forms
are acidic gases or particulates.
Active Ingredient - In any pesticide product,
the component that kills, or otherwise con-
trols, target pests. Pesticides are regulated pri-
marily on the basis of active ingredients.
Activated Sludge Process - A sewage treat-
ment process by which bacteria that feed on
organic wastes are continuously circulated and
put in contact with organic waste in the pres-
ence of oxygen to increase the rate of decom-
position.
44
Acute Effect - An adverse effect on any living
organism in which severe symptoms develop
rapidly and often subside after the exposure
stops.
Acute Toxicity - Adverse effects that result
from a single dose or single exposure of a
chemical; any poisonous effect produced
within a short period of time, usually less
than 96 hours. This term normally is used to
describe effects in experimental animals.
Administrative Order on Consent - A legal
agreement signed by EPA and an individual,
business, or other entity through which the
violator agrees to pay for correction of viola-
tions, take the required corrective or cleanup
actions, or refrain from an activity. The order
describes the actions to be taken, may be sub-
ject to a comment period, applies to civil
actions, and can be enforced in court.
Administrative Order - A legal document
signed by EPA directing an individual, busi-
ness, or other entity to take corrective action
or refrain from an activity. The order
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describes the violations and actions to be tak-
en, and can be enforced in court. Such orders
may be issued, for example, as a result of an
administrative complaint whereby the respon-
dent is ordered to pay a penalty for violations
of a statute.
Administrative Record - All documents
which EPA considered or relied on in selecting
the remedy at a Superfund site, culminating in
the record of decision for remedial action, or
an action memorandum for removal actions.
Aeration - The act of mixing a liquid with air
(oxygen).
Aerobic - A biological process that occurs in
the presence of oxygen.
Agricultural Waste - Poultry and livestock
manure, and residual materials in liquid or
solid form generated from the production and
marketing of poultry, livestock, furbearing
animals, and their products. Also includes
grain, vegetable, and fruit harvest residue.
Air Quality Standards - The level of selected
pollutants set by law that may not be exceeded
in outside air. Used to determine the amount
of pollutants that may be emitted by industry.
Alar - Trade name for daminozide, a pesti-
cide that makes apples redder, firmer, and
less likely to drop off trees before growers are
ready to pick them. Alar also is used to a less-
er extent on peanuts, tart cherries, concord
grapes, and other fruits.
Alkalinity - Having the properties of a base
with a pH of more than 7. A common alkaline
is baking soda.
Ambient - Any unconfined portion of the
atmosphere; open air; outside surrounding air.
Anaerobic - A biological process which
occurs in the absence of oxygen.
Aquifer - A water-bearing layer of rock
(including gravel and sand) that will yield
water in usable quantity to a well or spring.
Asbestos - A mineral fiber that can pollute air
or water and cause cancer or asbestosis when
inhaled. EPA has banned or severely restricted
the use of asbestos in manufacturing and con-
struction.
Assimilative Capacity - The ability of a nat-
ural body of water to receive wastewaters or
toxic materials without harmful effects and
without damage to aquatic life.
Bactericide - A pesticide used to control or
destroy bacteria, typically in the home,
schools, or on hospital equipment.
Benthic Organism - Any of a diverse group
of aquatic plants and animals that lives on the
bottom of marine and fresh bodies of water.
The presence or absence of certain benthic
organisms can be used as an indicator of
water quality.
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Best Available Control Technology (BACT)
The application of the most advanced meth-
ods, systems, and techniques for eliminating
or minimizing discharges and emissions on
a case-by-case basis as determined by EPA.
BACT represents an emission limit based on
the maximum degree of reduction of each
pollutant as described in regulations under
the Clean Air Act (CAA). The determination
of BACT takes into account energy, environ-
mental, economic effects, and other costs.
Best Available Technology Economically
Achievable (BATEA) - Originally described
under Section 304 (b) (2) (B) of the Clean
Water Act, this level of control is generally
described as the best technology currently in
use and includes controls on toxic pollutants.
Best Management Practices (BMP) - Proce-
dures or controls other than effluent limita-
tions to prevent or reduce pollution of sur-
face water (includes runoff control, spill pre-
vention, and operating procedures).
Bioaccumulation/Biomagnification - A
process where chemicals are retained in fatty
body tissue and increase in concentration over
time. Biomagnification is the increase of tissue
accumulation in species higher in the natural
food chain as contaminated food species are
eaten.
Bioassay - A method of testing a material's
effects on living organisms.
Biochemicals - Chemicals that are either nat-
urally occurring or identical to naturally
occurring substances. Examples include hor-
mones, pheromones, and enzymes. Biochemi-
cals function as pesticides through non-toxic,
non-lethal modes of action, such as disrupting
the mating pattern of insects, regulating
growth, or acting as repellents. Biochemicals
tend to be environmentally compatible and
are thus important to Integrated Pest Man-
agement programs.
Biochemical Oxygen Demand (BOD) - A
measure of the oxygen required to break
down organic materials in water. Higher
organic loads require larger amounts of oxy-
gen and may reduce the amount of oxygen
available for fish and aquatic life below
acceptable levels.
Biodegradable - The ability of a substance to
be broken down physically and/or chemically
by microorganisms. For example, many
chemicals, food scraps, cotton, wool, and
paper are bio-degradable; plastics and poly-
ester generally are not.
Biodiversity - The number and variety of dif-
ferent organisms in the ecological complexes
in which they naturally occur. Organisms are
organized at many levels, ranging from com-
plete ecosystems to the biochemical struc-
tures that are the molecular basis of heredity.
Thus, the term encompasses different ecosys-
tems, species, and genes that must be present
for a healthy environment. A large number of
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species must characterize the food chain, rep-
resenting multiple predator-prey relationships.
Biological pesticides - Certain microorgan-
isms, including bacteria, fungi, viruses, and
protozoa that are effective in controlling target
pests. These agents usually do not have toxic
effects on animals and people and do not
leave toxic or persistent chemical residues in
the environment.
Bioremediation - The use of living organ-
isms (e.g., bacteria) to clean up oil spills or
remove other pollutants from soil, water, and
wastewater.
Biota - All living organisms in a given area.
Boom - (1) A floating device used to contain
oil on a body of water. (2) A piece of equip-
ment used to apply pesticides from a tractor
or truck.
Bubble (Bubble Policy) - Existing sources of
air pollution with several facilities may control
more than is required at one emission point
where control costs are lower, in return for
comparable relaxation at a second point where
costs are higher or more difficult to achieve.
By-product - Materials, other than the intend-
ed product, generated as a result of an indus-
trial process.
Cap - A fairly impermeable seal, usually com-
posed of clay-type soil or a combination of
clay soil and synthetic liner, which is placed
over a landfill during closure. The cap serves
to minimize leachate volume during
biodegradation of the waste by keeping pre-
cipitation from percolating through the land-
fill. The cap also keeps odors down and ani-
mal scavengers from gathering.
Capacity Assurance Plan - A plan which
assures that a state has the ability to treat and
dispose of hazardous wastes generated within
its borders over the next 20 years. Section 104
of SARA required the first plan to be submit-
ted to EPA in October 1989. But even though
capacity has been certified, the state is not
required to treat or dispose of hazardous
wastes at home; many are exporting to other
states that have commercial facilities, permitted
landfills, and incinerators. See Law section.
Carcinogenic or Carcinogen - Capable of
causing cancer. A suspected carcinogen is a
substance that may cause cancer in humans or
animals but for which the evidence is not
conclusive.
CERCLIS (Pronounced SERK-liss) - The fed-
eral Comprehensive Environmental Response,
Compensation, and Liability Information Sys-
tem. This database includes all sites which
have been nominated for investigation by the
Superfund program and the actions that have
been taken at these sites. If the site investiga-
tion reveals contamination, the site is ranked
and may be included on the National Priori-
ties List for Superfund cleanup. Inclusion in
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the CERCLIS database does not necessarily
mean that a property is a hazardous waste
site. An emergency action may have been con-
ducted there or a simple investigation which
concluded that no further action was required.
Chemical Abstract Service (CAS) - Since
the 1890s, CAS has been assigning identifica-
tion numbers to chemicals that companies
register with them. Every year, CAS updates
and writes new chemical abstracts on well
over a million different chemicals, including
their composition, structure, characteristics,
and all the different names of that chemical.
CAS On-Line is a computer network available
to individual and business account holders to
receive information about specific chemicals
of concern. Each abstract is accompanied by
the CAS number.
Chemical Oxygen Demand (COD) - A mea-
sure of the oxygen-consuming capacity of inor-
ganic and organic matter present in water or
wastewater; the amount of oxygen consumed
from a chemical oxidant in a specific test.
Chlorination - Adding chlorine to water or
wastewater, generally for the purpose of disin-
fection, but frequently for accomplishing other
biological or chemical results. Chlorine also is
used almost universally in manufacturing
processes, particularly for the plastics industry.
Chlorofluorocarbons (CFCs) - A family of
chemicals commonly used in air conditioners
and refrigerators as coolants and also as sol-
vents and aerosol propellents. CFCs drift into
the upper atmosphere where their chlorine
components destroy ozone. CFCs are thought
to be a major cause of the ozone hole over
Antarctica.
Chronic Effect - An adverse effect on any liv-
ing organism in which symptoms develop
slowly over a long period of time or recur fre-
quently.
Clear Cut - Harvesting all the trees in one
area at one time, a practice that destroys vital
habitat and biodiversity and encourages rain-
fall or snowmelt runoff, erosion, sedimenta-
tion of streams and lakes, and flooding.
Cloning - In biotechnology, obtaining a
group of genetically identical cells from a sin-
gle cell; making identical copies of a gene.
Climate Change - this term is commonly
used interchangeably with "global warming"
and "the greenhouse effect," but is a more
descriptive term. Climate change refers to the
buildup of man-made gases in the atmosphere
that trap the sun's heat, causing changes in
weather patterns on a global scale. The effects
include changes in rainfall patterns, sea level
rise, potential droughts, habitat loss, and heat
stress. The greenhouse gases of most concern
are carbon dioxide, methane, and nitrous
oxides. If these gases in our atmosphere dou-
ble, the earth could warm up by 1.5 to 4.5
degrees by the year 2050, with changes in
global precipitation having the greatest conse-
quences.
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Closure - The procedure an operator must go
through when a landfill reaches the legal
capacity for solid waste. No more waste can
be accepted and a cap usually is placed over
the site. The cap is then planted with grasses
and other ground covers. Post-closure care
includes monitoring ground water, landfill
gases, and leachate collection systems, some-
times for as long as 30 years.
Code of Federal Regulations (CFR) - A peri-
odic publication of the regulations established
by U.S. law.
Commercial Waste - All solid waste from
businesses. This category includes, but is not
limited to, solid waste originating in stores,
markets, office buildings, restaurants, shop-
ping centers, and theaters.
Commercial Waste Management Facility -
A treatment, storage, disposal, or transfer
facility that accepts wastes from a variety of
sources for profit. A commercial facility man-
ages a broader spectrum of wastes than a pri-
vate facility, which normally manages a limit-
ed volume or type of waste.
Community Relations - Two-way communi-
cations with the public to foster understand-
ing of EPA programs and actions and to
increase citizen input into EPA decisions. Spe-
cific community relations activities such as
holding public meetings and comment peri-
ods and opening information repositories are
required at Superfund sites.
Compost - Decomposed organic material that
is produced when bacteria in soil break down
garbage and biodegradable trash, making
organic fertilizer. Making compost requires
turning and mixing and exposing the materi-
als to air. Gardeners and farmers use compost
for soil enrichment.
Concentration - The relative amount of a
substance mixed with another substance. An
example is five parts per million of carbon
monoxide in air or 1 milligram/liter of iron
in water.
Conditionally Exempt Generators - Small
quantity facilities that produce fewer than 220
pounds of hazardous waste per month.
Exempt from most regulations, conditionally
exempt generators are required to determine
whether their waste is hazardous and to notify
local waste management agencies. These gen-
erators may treat or dispose of the waste on
site or ensure that the waste is sent to a per-
mitted disposal or recycling facility.
Cone of Depression - A lowering in the water
table that develops around a pumped well.
Construction and Demolition Waste -
Waste building materials, dredging materials,
tree stumps, and rubble resulting from con-
struction, remodeling, repair, and demolition
operations on houses, commercial buildings
and other structures, and pavements. May
contain lead, asbestos, or other hazardous
materials.
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Corrosive - A substance that eats or wears
away materials gradually by chemical action.
Consent Decree - A legal document submit-
ted by the Department of Justice on behalf
of the EPA for approval by a federal judge to
settle a case. A consent decree can be used to
formalize an agreement reached between EPA
and potentially responsible parties (PRPs) for
cleanup at a Superfund site. Consent decrees
also are signed by regulated facilities to cease
or correct certains actions or processes that
are polluting the environment and include
payment of penalties. The Clean Water Act,
Clean Air Act, Toxic Substances Control
Act, and others all use consent decrees.
Conservation - Preserving and renewing nat-
ural resources to assure their highest econom-
ic or social benefit over the longest period of
time. Clean rivers and lakes, wilderness areas,
a diverse wildlife population, healthy soil, and
clean air are natural resources worth conserv-
ing for future generations.
Continuous Discharge - A permitted release
of pollutants into the environment that occurs
without interruption, except for infrequent
shutdowns for maintenance, process changes,
etc.
Controlled Reaction - A chemical reaction at
temperature and pressure conditions that are
maintained within safe limits to produce a
desired product.
County Emergency Operations Plan - A
plan required by Federal Emergency Man-
agement Agency regulations that describes
actions the county will take to respond to
emergency situations such as natural disas-
ters, major fires, transportation incidents, or
chemical releases.
Covered Facility - A facility having one or
more of the 366+ extremely hazardous sub-
stances in amounts higher than the quantity
designated by EPCRA. These facilities must
file reports with the SERC and LEPC.
Cradle-to-Grave or Manifest System - A
procedure in which hazardous wastes are
identified as they are produced and are fol-
lowed through further treatment, transporta-
tion, and disposal by a series of permanent,
linkable, descriptive documents.
Criteria - Descriptive factors taken into
account by EPA in setting standards for pollu-
tants. For example, water quality criteria
describe the concentration of pollutants that
most fish can be exposed to for an hour with-
out showing acute effects.
Dechlorination - Removal of chlorine and
chemical replacement with hydrogen or
hydroxide ions to detoxify a substance.
Deep Well Injection - A process by which
waste fluids are injected deep below the sur-
face of the earth.
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Delist - Use of the petition process (1) to
have a chemical's toxic designation rescinded;
(2) to remove a site from the National Priori-
ty List; or (3) to exclude a particular waste
from regulation even though it is a listed haz-
ardous waste.
Destruction and Removal Efficiency (DRE) -
a percentage that represents the number of
molecules of a compound removed or
destroyed in an incinerator. A DRE of 99.99%
means that 9,999 molecules are destroyed for
every 10,000 that enter.
Discharge - The release of any waste into the
environment from a point source. Usually
refers to the release of a liquid waste into a
body of water through an outlet such as a
pipe, but also refers to air emissions.
Discharge Area - An area of land where there
is a net annual transfer of water from the
ground water to surface water, such as to
streams, springs, lakes, and wetlands.
Dispersion Model - A mathematical predic-
tion of how pollutants from a discharge or
emission source will be distributed in the
surrounding environment under given condi-
tions of wind, temperature, humidity, and
other environmental factors.
Disposal - The discharge, deposit, injection,
dumping, spilling, leaking, or placing of any
solid waste or hazardous waste into the
environment (land, surface water, ground
water, and air).
Disposal Facility - A landfill, incinerator, or
other facility which receives waste for dispos-
al. The facility may have one or many dispos-
al methods available for use. Does not include
wastewater treatment.
Dissolved Oxygen (DO) - Oxygen that is
freely available in water to sustain the lives of
fish and other aquatic organisms.
Dose - In terms of monitoring exposure lev-
els, the amount of a toxic substance taken
into the body over a given period of time.
Dose Response - How an organism's
response to a toxic substance changes as its
overall exposure to the substance changes. For
example, a small dose of carbon monoxide may
cause drowsiness; a large dose can be fatal.
Dump - A land site where wastes are discard-
ed in a disorderly or haphazard fashion with-
out regard to protecting the environment.
Uncontrolled dumping is an indiscriminate
and illegal form of waste disposal. Problems
associated with dumps include multiplication
of disease-carrying organisms and pests, fires,
air and water pollution, unsightliness, loss of
habitat, and personal injury.
Emergency Broadcasting System (BBS) -
Used to inform the public about an emer-
gency and the protective actions to take. The
BBS is a service of local radio and television
stations, activated as needed and approved by
a local emergency management agency.
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Ecology - The study of the relationships
between all living organisms and the environ-
ment, especially the totality or pattern of
interactions; a view that includes all plant and
animal species and their unique contributions
to a particular habitat.
Ecosystem - The interacting synergism of all
living organisms in a particular environment;
every plant, insect, aquatic animal, bird, or
land species that forms a complex web of
interdependency. An action taken at any level
in the food chain, use of a pesticide for exam-
ple, has a potential domino effect on every
other occupant of that system.
Effluent - Wastewater discharged from a
point source, such as a pipe.
Effluent Guidelines - Technical documents
developed by EPA which set discharge limits
for particular types of industries and specific
pollutants.
Effluent Limitations - Limits on the amounts
of pollutants which may be discharged by a
facility; these limits are calculated so that
water quality standards will not be violated
even at low stream flows.
Emergency and Hazardous Chemical
Inventory - An annual report by facilities hav-
ing one or more extremely hazardous sub-
stances or hazardous chemicals above certain
weight limits, as specified in Section 311 and
312ofEPCRA.
Emergency Preparedness Coordinator - The
local government official designated to be noti-
fied immediately of chemical emergencies
(e.g., spills, chemical releases, explosions, or
fires) under EPCRA.
Emission - The release or discharge of a sub-
stance into the environment. Generally refers
to the release of gases or particulates into
the air.
Emission Standards - Government standards
that establish limits on discharges of pollu-
tants into the environment (usually in refer-
ence to air).
Endangered Species - Animals, plants, birds,
fish, or other living organisms threatened
with extinction by man-made or natural
changes in the environment.
Energy Recovery - To capture energy from
waste through any of a variety of processes
(e.g., burning). Many new technology incin-
erators are waste-to-energy recovery units.
Environmental Assessment (EA) - A prelim-
inary, written, environmental analysis
required by NEPA (see the Federal Law sec-
tion) to determine whether a federal activity
such as building airports or highways would
significantly affect the environment; may
require preparation of more detailed Environ-
mental Impact Statement.
Environmental Audit - An independent
assessment (not conducted by EPA) of a facili-
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ty's compliance policies, practices, and controls.
Many pollution prevention initiatives require
an audit to determine where wastes may be
reduced or eliminated or energy conserved.
Many supplemental environmental projects
that offset a penalty use audits to identify ways
to reduce the harmful effects of a violation.
Environmental Equity - Equal protection
from environmental hazards for individuals,
groups, or communities regardless of race,
ethnicity, or economic status.
Environmental Impact Statement (EIS) - A
document prepared by or for EPA which
identifies and analyzes, in detail, environmen-
tal impacts of a proposed action. As a tool for
decision-making, the EIS describes positive
and negative effects and lists alternatives for
an undertaking, such as development of a
wilderness area. (Required by NEPA — see
Federal Law Section).
Environmental Justice - The fair treatment of
people of all races, cultures, incomes, and
educational levels with respect to the develop-
ment and enforcement of environmental laws,
regulations, and policies. Fair treatment
implies that no population should be forced
to shoulder a disproportionate share of expo-
sure to the negative effects of pollution due to
lack of political or economic strength.
Environmental Response Team (ERT) -
EPA's group of highly trained scientists and
engineers based in Edison, NJ and Cincinnati,
OH who back up the federal On-Scene Coor-
dinator. The ERT's capabilities include multi-
media sampling and analysis, hazard assess-
ment, hazardous substance and oil spill
cleanup techniques, and technical support.
Epidemiologist - A medical scientist who
studies the various factors involved in the
incidence, distribution, and control of disease
in a population.
Erosion - The wearing away of soil by wind
or water, intensified by land-clearing practices
related to farming, residential or industrial
development, road building, or logging.
Estuary - A complex ecosystem between a
river and near-shore ocean waters where fresh
and salt water mix. These brackish areas
include bays, mouths of rivers, salt marshes,
wetlands, and lagoons and are influenced by
tides and currents. Estuaries provide valuable
habitat for marine animals, birds, and other
wildlife.
Explosive Limits (chemical) - The amounts
of vapor in air that form explosive mixtures.
These limits are expressed as lower and upper
values and give the range of vapor concentra-
tions in air that will explode if an ignition
source is present.
Exposure - Radiation or pollutants that come
into contact with the body and present a
potential health threat. The most common
routes of exposure are through the skin,
mouth, or by inhalation.
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Extremely Hazardous Substances (EHS) -
Any of 366 (+ or -) chemicals or hazardous
substances identified by EPA on the basis of
hazard or toxicity and listed under EPCRA.
The list is periodically revised.
Fecal Coliform Bacteria - Found in the
intestinal tracts of mammals, this bacteria in
water or sludge is an indicator of pollution
and possible contamination by pathogens.
Feedstock - Raw material supplied to a
machine or processing plant from which other
products can be made. For example,
polyvinyl chloride and polyethylene are raw
chemicals used to produce plastic tiles, mats,
fenders, cushions, and traffic cones.
Financial Assurance - A means (such as insur-
ance, guarantee, surety bond, letter of credit, or
qualification as a self-insurer) by the operator
of a facility such as a landfill to assure financial
capability for cleaning up possible environ-
mental releases and closure of that facility.
First Draw - The water that comes out when
a faucet in the kitchen or bathroom is first
opened, which is likely to have the highest
level of lead contamination from old plumb-
ing solder and pipes.
Flammable - Describes any material that can
be ignited easily and that will burn rapidly.
Flare - A device that burns gaseous materials
to prevent them from being released into the
environment. Flares may operate continuous-
ly or intermittently and are usually found on
top of a stack. Flares also burn off methane
gas in a landfill.
Flash Point - The lowest temperature at
which evaporation of a substance produces
enough vapor to form an ignitable mixture
with air.
Floodplain - Mostly level land along rivers and
streams that may be submerged by floodwater.
A 100-year floodplain is an area which can be
expected to flood once in every 100 years.
Flue Gas Desulfurization - The removal of
sulfur oxides from exhaust gases of a boiler or
industrial process; usually a wet scrubbing
operation which concentrates hazardous mate-
rials in a slurry, requiring proper disposal.
Fugitive Emissions - Air pollutants released
to the air other than those from stacks or
vents; typically small releases from leaks in
plant equipment such as valves, pump seals,
flanges, sampling connections, etc.
Fungicide - A pesticide used to control or
destroy fungi on food or grain crops.
Garbage - Food waste (animal and vegetable)
resulting from the handling, storage, packag-
ing, sale, preparation, cooking, and serving of
foods.
General Reporting Facility - A facility hav-
ing one or more hazardous chemicals above
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the 10,000-pound Threshold Planning Quan-
tity. These facilities must file Material Safety
Data Sheets and emergency inventory infor-
mation with the SERC, LEPC, and local fire
departments.
Generator - A facility or mobile source that
emits pollutants into the air; any person who
produces a hazardous waste that is listed by
EPA and therefore subject to regulation.
Genetic Engineering - A process of inserting
new genetic information into existing cells in
order to modify an organism for the purpose
of changing particular characteristics.
Global Warming - See definition for Climate
Change.
Grab Sample - A single sample of soil or of
water taken without regard to time or flow.
Greenhouse Effect - See definition for Cli-
mate Change.
Ground Water - Water found below the sur-
face of the land, usually in porous rock for-
mations. Ground water is the source of water
found in wells and springs and is used fre-
quently for drinking.
Hazard Communication Standard - An
OSHA regulation that requires chemical man-
ufacturers, suppliers, and importers to assess
the hazards of the chemicals they make, sup-
ply, or import, and to inform employers, cus-
tomers, and workers of these hazards through
a Material Safety Data Sheet.
Hazardous Chemical - EPA's designation for
any hazardous material that requires a Mater-
ial Safety Data Sheet. Such substances are
capable of producing adverse physical effects
(fire, explosion, etc.) or adverse health effects
(cancer, dermatitis, etc.)
Hazardous Waste - A subset of solid wastes
that pose substantial or potential threats to
public health or the environment and meet
any of the following criteria:
- is specifically listed as a hazardous waste by
EPA;
- exhibits one or more of the characteristics
of hazardous wastes (ignitability, corrosive-
ness, reactivity, and/or toxicity);
- is generated by the treatment of hazardous
waste; or is contained in a hazardous waste.
Hazardous Waste Landfill - A specially per-
mitted, excavated or engineered area in which
hazardous waste is deposited and covered.
Proper protection of the environment from
the materials to be deposited in such a land-
fill requires careful site selection, the cata-
loging of types of wastes, good design (includ-
ing a liner and a leachate collection and treat-
ment system), proper operation, and thor-
ough final closure.
Health Assessment - An evaluation of avail-
able data on existing or potential risks posed by
a Superfund site. Every site on the National Pri-
orities List has a health assessment prepared by
the Agency for Toxic Substances and Disease
Registry (see Government Agency section).
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Heavy Metal - A common hazardous waste;
can damage organisms at low concentrations
and tends to accumulate in the food chain.
Herbicide - A pesticide designed to control
or kill plants, weeds, or grasses. Almost 70%
of all pesticide used by farmers and ranchers
are herbicides. These chemicals have wide-
ranging effects on non-target species (other
than those the pesticide is meant to control).
Household or Domestic Waste - Solid waste,
composed of garbage and rubbish, which nor-
mally originates from residential, private
households, or apartment buildings. Domestic
waste may contain a significant amount of toxic
or hazardous waste from improperly discard-
ed pesticides, paints, batteries, and cleaners.
Hydraulic Gradient - The direction of ground
water flow due to changes in the depth of the
water table.
Hydrocarbons - Chemicals that consist entire-
ly of hydrogen and carbon. Hydrocarbons con-
tribute to air pollution problems like smog.
Identification Code or EPA I.D. Number -
The unique code assigned to each generator,
transporter, and treatment, storage, or dispos-
al facility by EPA to facilitate identification
and tracking of hazardous waste. Superfund
sites also have assigned I.D. numbers.
Impoundment - A body of water or sludge
confined by a dam, dike, floodgate, or other
barrier.
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Incident Command System (ICS) - An orga-
nizational scheme wherein one person, nor-
mally the Fire Chief, takes charge of an inte-
grated, comprehensive emergency response.
This commander is backed by an Emergency
Operations Center which provides support,
resources, communications, and advice.
Incineration - The destruction of solid, liq-
uid, or gaseous wastes by controlled burning
at high temperatures. Hazardous organic
compounds are converted to ash, carbon
dioxide, and water. Burning destroys organ-
ics, reduces the volume of waste, and vapor-
izes water and other liquids the wastes may
contain. The residue ash produced may con-
tain some hazardous material, such as non-
combustible heavy metals, concentrated
from the original waste.
Incinerator - A furnace for the routine burn-
ing of waste materials using controlled flame
combustion.
Incompatible Waste - A waste unsuitable for
mixing with another waste or material
because of reactivity hazards.
Indirect Discharge - The introduction of pol-
lutants from a non-domestic source into a
publicly owned wastewater treatment system.
Indirect dischargers can be commercial or
industrial facilities who must pre-treat their
wastes before discharge into local sewers.
Indoor Air - Breathing air inside a habitable
structure, often highly polluted because of
lack of exchange with fresh oxygen from out-
doors. Solvents, smoke, paints, furniture
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glues, carpet padding, and other synthetic
chemicals trapped inside contribute to an
often unhealthy environment.
Industrial Waste - Unwanted materials pro-
duced in or eliminated from an industrial
operation and categorized under a variety of
headings, such as liquid wastes, sludge, solid
wastes, and hazardous wastes.
Inert ingredients - Substances that are not
"active," such as water, petroleum distillates,
talc, corn meal, or soaps. When discussing
pesticides, inert ingredients do not attack a
particular pest, but some are chemically or
biologically active, causing health and envi-
ronmental problems.
Infectious Waste - See definition for Med-
ical Waste.
Innovative Technology - New or inventive
methods to treat hazardous wastes, conserve
energy, or prevent pollution.
Insecticide - A pesticide compound specifical-
ly used to kill or prevent the growth of insects.
Integrated Pest Management (IPM) - A
combination of biological, cultural, and genet-
ic pest control methods with use of pesticides
as the last resort. IPM considers a targeted
species' life cycle and intervenes in reproduc-
tion, growth, or development to reduce the
population. Land use practices are examined
for possible change; other animals, birds, or
reptiles in the ecosystem are used as natural
predators.
Interstate Commerce - A clause of the Unit-
ed States Constitution which reserves to the
federal government the right to regulate the
conduct of business across state lines. Under
this clause, the U.S. Supreme Court has ruled
that states may not restrict the disposal of
wastes originating out-of-state more than that
of waste originating in-state.
Inversion - An atmospheric condition caused
by increasing temperature with elevation,
resulting in a layer of warm air preventing the
rise of cooler air trapped beneath. This condi-
tion prevents the rise of pollutants that might
otherwise be dispersed. Trapping pollutants
near the ground increases ozone to harmful
levels.
Irradiated Food - Food that has been briefly
exposed to radioactivity (usually gamma rays)
to kill insects, bacteria, and mold. Irradiated
food can be stored without refrigeration or
chemical preservatives and has a long "shelf
life."
Irritant - A substance that can cause irritation
of the skin, eyes, or respiratory system. An
irritant can cause an acute effect from a sin-
gle high-level exposure, or chronic effects
from repeated, low-level exposures. Some
examples of irritants are chlorine, nitric acid,
and various pesticides.
Karst - A geologic formation of irregular lime-
stone deposits with sinks, underground
streams, and caverns.
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Lagoon - A shallow, artificial treatment pond
where sunlight, bacterial action, and oxygen
work to purify wastewater; a stabilization
pond. An aerated lagoon is a treatment pond
that uses oxygen to speed up the natural
process of biological decomposition of organ-
ic wastes. A lagoon is regulated as a point
source under the Clean Water Act if there is
a direct surface water discharge. Some
lagoons that discharge into ground water
also are regulated if they have a direct hydro-
geologic connection to surface water. In other
areas, lagoons were historically used to dump
various liquid, solid, and hazardous wastes
from manufacturing or industrial processes.
These wastes typically flooded and polluted
surrounding environs or seeped under-
ground. Such lagoons are now regulated
under RCRA but some must be cleaned up
under Superfund.
Land Disposal Restrictions (Land Ban) -
Mandated by the 1984 amendments to
RCRA; prohibits the disposal of hazardous
wastes into or on the land.
Landfill - A method for final disposal of sol-
id waste on land. The refuse is spread and
compacted and a cover of soil applied so that
effects on the environment (including public
health and safety) are minimized. Under cur-
rent regulations, landfills are required to have
liners and leachate treatment systems to pre-
vent contamination of ground water and sur-
face waters. An industrial landfill disposes of
non-hazardous industrial wastes. A munici-
pal landfill disposes of domestic waste includ-
ing garbage, paper, etc. This waste may
include toxins that are used in the home,
such as insect sprays and powders, engine oil,
paints, solvents, and weed killers.
Large Quantity Generator - Person or facili-
ty which generates more than 2,200 pounds
of hazardous waste per month. In 1989,
only 1% of more than 20,000 generators fell
into this category. Those generators produced
nearly 97% of the nation's hazardous waste.
These generators are subject to all require-
ments of RCRA.
Leachate - Liquid (mainly water) that perco-
lates through a landfill and has picked up
dissolved, suspended, and/or microbial cont-
aminants from the waste. Leachate can be
compared to coffee: water that has percolated
down through the ground coffee.
Lethal Concentration 50 (LC 50) - A con-
centration of a pollutant or effluent at which
50% of the test organisms die; a common
measure of acute toxicity.
Lethal Dose 50 (LD 50) - The dose of a tox-
icant that will kill 50% of test organisms
within a designated period of time. The lower
the LD 50, the more toxic the compound.
Limited Degradation - A policy that allows
for some lowering of natural environmental
quality to a given level beneath an established
health standard.
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Liner - Structure of natural clay or manufac-
tured material (plastic) which serves as a barri-
er to restrict leachate from reaching or mixing
with ground water in landfills, lagoons, etc.
Litter - The highly visible portion of solid
waste (usually packaging material) which is
generated by the consumer and carelessly dis-
carded outside of the regular garbage dispos-
al system, as on the highways or in streets.
Local Emergency Planning Committee
(LEPC) - The body appointed by the State
Emergency Response Commission (SERC),
as required by EPCRA, which develops com-
prehensive emergency plans for Local Emer-
gency Planning Districts, collects MSDS
forms and chemical release reports, and pro-
vides this information to the public. Each
county and some large city governments par-
ticipate in an LEPC.
Manifest System - Tracking of hazardous
waste from "cradle to grave" (generation
through disposal), with accompanying docu-
ments known as "manifests."
Material Safety Data Sheet (MSDS) - Print-
ed material concerning a hazardous chemi-
cal, or Extremely Hazardous Substance,
including its physical properties, hazards to
personnel, fire and explosion potential, safe
handling recommendations, health effects,
fire fighting techniques, reactivity, and prop-
er disposal. Originally established for
employee safety by OSHA.
Maximum Achievable Control Technology
(MACT) - Generally, the best available con-
trol technology, taking into account cost and
technical feasibility.
Maximum Contaminant Level (MCL) - The
maximum level of certain contaminants per-
mitted in drinking water supplied by a public
water system as set by EPA under the federal
Safe Drinking Water Act.
Maximum Contaminant Level Goal
(MCLG) - The maximum level of a contami-
nant that is associated with no adverse health
effects from drinking water containing that
contaminant over a lifetime. For chemicals
believed to cause cancer, the MCLGs are set
at zero. MCLGs are not enforceable, but are
ideal, health-based goals which are set in the
National Primary Drinking Water Standards
developed by EPA. MCLs are set as close to
MCLGs as possible, considering costs and
technology.
Medical Waste - All wastes from hospitals,
clinics, or other health care facilities ("Red
Bag Waste") that contain or have come into
contact with diseased tissues or infectious
microorganisms. Also referred to as infec-
tious waste which is hazardous waste with
infectious characteristics, including: contami-
nated animal waste, human blood and blood
products, pathological waste, and discarded
sharps (needles, scalpels, or broken medical
instruments).
Microorganisms - Bacteria, yeasts, simple
fungi, algae, protozoans, and a number of
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other organisms that are microscopic in size.
Most are beneficial but some produce disease.
Others are involved in composting and
sewage treatment.
Milligrams/liter (mg/1) - A measure of con-
centration used in the measurement of flu-
ids. Mg/1 is the most common way to present
a concentration in water and is roughly
equivalent to parts per million.
Minimization - Measures or techniques that
reduce the amount of wastes generated dur-
ing industrial production processes; this term
also is applied to recycling and other efforts
to reduce the volume of waste going to land-
fills. This term is interchangeable with waste
reduction and waste minimization.
Mitigation - Measures taken to reduce
adverse effects on the environment.
Monitoring Well - A well used to take water
quality samples or to measure ground water
levels.
Morbidity - Rate of incidence of disease.
Mortality - Death rate.
Mutagenicity - The property of a chemical
that causes the genetic characteristics of an
organism to change in such a way that future
generations are permanently affected.
National Ambient Air Quality Standards
(NAAQS) - Maximum air pollutant standards
that EPA set under the Clean Air Act for
attainment by each state. The standards were
to be achieved by 1975, along with state
implementation plans to control industrial
sources in each state.
National Emissions Standards for Haz-
ardous Air Pollutants (NESHAP) - Emis-
sion standards set by EPA for an air pollutant
not covered by NAAQS that may cause an
increase in deaths or serious, irreversible, or
incapacitating illness. Primary standards are
designed to protect human health, secondary
standards to protect public welfare.
National Pollutant Discharge Elimination
System (NPDES) - The primary permitting
program under the Clean Water Act which
regulates all discharges to surface water.
National Priorities List (NPL) - A list of
sites, many nominated by the states, for haz-
ardous waste cleanup under Superfund.
National Response Center (NRC) - The pri-
mary communications center operated by the
U.S. Coast Guard to receive reports of major
chemical and oil spills and other hazardous
substances into the environment. The NRC
immediately relays reports to a predesignated
federal On-Scene Coordinator.
National Response Team (NRT) - Represen-
tatives from 15 federal agencies with interests
and expertise in various aspects of emergency
response to pollution incidents. EPA serves as
chair and the U.S. Coast Guard serves as vice-
chair. The NRT is primarily a national plan-
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ning, policy, and coordinating body and does
not respond directly to incidents. The NRT
provides policy guidance prior to an incident
and assistance as requested by a federal On-
Scene Coordinator via a Regional Response
Team during an incident. NRT assistance
usually takes the form of technical advice,
access to additional resources or equipment,
or coordination with other RRTs.
National Strike Force (NSF) - Operated by
the U.S. Coast Guard, the NSF is composed
of three strategically located teams (Atlantic,
Pacific, and Gulf coasts) who back up the fed-
eral On-Scene Coordinator. These teams are
extensively trained and equipped to respond
to major oil spills and chemical releases.
These capabilities are especially suited to inci-
dents in a marine environment but also
include site assessment, safety, action plan
development, and documentation for both
inland and coastal zone incidents. The NSF
Coordination Center is at Elizabeth City, NC.
Neutralization - The chemical process in
which the acidic or basic characteristics of a
fluid are changed to those of water (pH = 7).
Non-Attainment - Refers to areas of the Unit-
ed States that have not met air standards for
human health by deadlines set in the Clean
Air Act.
Non-Contact Cooling Water - Water used
for cooling which does not come into direct
contact with any raw material, product, by-
product, or waste.
Non-Degradation - A policy that forbids any
lowering of naturally occurring environmen-
tal quality regardless of established health
standards.
Nonpoint Source - Any source of pollution
not associated with a distinct discharge
point. Includes sources such as rainwater,
runoff from agricultural lands, industrial
sites, parking lots, and timber operations, as
well as escaping gases from pipes and fittings.
No Observed Adverse Effect Level or No
Observed Effect Level (NOAEL) or (NOEL)
A level of exposure which does not cause
observable harm.
Odor Threshold - The lowest concentration
of a substance in air that can be smelled. Odor
thresholds are highly variable because of the
differing ability of individuals to detect odors.
On-Scene Coordinator (OSC) - The federal
official responsible for the coordination of a
hazardous materials response action, as speci-
fied in individual Regional Contingency Plans.
OSCs are predesignated by EPA for inland
areas and by the U.S. Coast Guard for coastal
areas. The OSC coordinates all federal contain-
ment, removal, and disposal efforts and
resources during a pollution incident. The OSC
is the point of contact for the coordination of
federal efforts with those of the local response
community. The OSC has access to extensive
federal resources, including the National
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Strike Force, the Environmental Response
Team, and Scientific Support Coordinators.
The OSC can be a source of valuable support
and information to the community.
On Site - On the same, or adjacent, property.
Organically Grown - Food, feed crops, and
livestock grown within an intentionally-diver-
sified, self-sustaining agro-ecosystem. In prac-
tice, farmers build up nutrients in the soil
using compost, agricultural wastes, and cover
crops instead of synthetically derived fertiliz-
ers to increase productivity, rotate crops,
weed mechanically, and reduce dramatically
their dependence on the entire family of pesti-
cides. Farmers must be certified to character-
ize crops as organically grown and can only
use approved natural and synthetic biochemi-
cals, agents, and materials for three consecu-
tive years prior to harvest. Livestock must be
fed a diet that includes grains and forages that
have been organically grown and cannot
receive hormones, sub-therapeutic antibiotics,
or other growth promoters.
Organism - Any living being, whether plant,
mammal, bird, insect, reptile, fish, crustacean,
aquatic or estuarine animal, or bacterium.
Oxidant - A substance containing oxygen
that reacts chemically with other materials to
produce new substances. Oxidants are the
primary ingredients in smog.
Ozone - Three molecule oxygen compound
(03) found in two layers of the earth's atmos-
phere. One layer of beneficial ozone occurs at
seven to 18 miles above the surface and
shields the earth from ultraviolet light. Several
holes in this protective layer have been docu-
mented by scientists. Ozone also concentrates
at the surface as a result of reactions between
by-products of fossil fuel combustion and
sunlight, having harmful health effects.
Particulates - Liquid or solid particles such
as dust, smoke, mist, or smog found in air
emissions.
Parts per billion (ppb) - One ppb is compa-
rable to one kernel of corn in a filled, 45-foot
silo, 16 feet in diameter.
Parts per million (ppm) - One ppm is com-
parable to one drop of gasoline in a tankful of
gas (full-size car).
Parts per trillion (ppt) - One ppt is compa-
rable to one drop in a swimming pool cover-
ing the area of a football field 43 ft. deep.
Pathogen - A bacterial organism typically
found in the intestinal tracts of mammals,
capable of producing disease.
Performance Bond - Cash or securities,
deposited before a landfill operating permit is
issued, which are held to ensure that all
requirements for operating a landfill are per-
formed. The money is returned to the owner
after proper closure of the landfill is complete.
If contamination or other problems appear at
any time during operation, or upon closure,
and are not addressed, the owner must forfeit
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all or part of the performance bond which is
then used to cover costs of cleanup.
Permeability - The ease with which water, or
other fluid, passes through a substance.
Permissible Exposure Limit (PEL) - Work-
place exposure limits for contaminants estab-
lished by OSHA.
Permit - A legal document issued by state
and/or federal authorities containing a
detailed description of the proposed activity
and operating procedures as well as appropri-
ate requirements and regulations. The permit-
ting process includes provisions for public
comment.
Pesticide - Substances intended to repel, kill,
or control any species designated a "pest"
including weeds, insects, rodents, fungi, bac-
teria, or other organisms. The family of pesti-
cides includes herbicides, insecticides,
rodenticides, fungicides, and bactericides.
pH - The measure of acidity or alkalinity of a
chemical solution, from 0-14. Anything neu-
tral, for example, has a pH of 7. Acids have a
pH less than 7, bases (alkaline) greater than 7.
Plume - A concentration of contaminants in
air, soil, or water usually extending from a
distinct source.
Point Source - A stationary location or fixed
facility such as an industry or municipality
that discharges pollutants into air or surface
water through pipes, ditches, lagoons, wells,
or stacks; a single identifiable source such as
a ship or a mine.
Pollution - Any substances in water, soil, or
air that degrade the natural quality of the
environment, offend the senses of sight, taste,
or smell, or cause a health hazard. The useful-
ness of the natural resource is usually
impaired by the presence of pollutants and
contaminants.
Pollution Prevention - Actively identifying
equipment, processes, and activities which
generate excessive wastes or use toxic chemi-
cals and then making substitutions, alter-
ations, or product improvements. Conserving
energy and minimizing wastes are pollution
prevention concepts used in manufacturing,
sustainable agriculture, recycling, and
clean air/clean water technologies.
Polychlorinated Biphenyls (PCBs) - A
group of toxic, persistent chemicals used in
electrical transformers and capacitors for
insulating purposes, and in gas pipeline sys-
tems as a lubricant. The sale and new use of
PCBs were banned by law in 1979.
Potable Water - Raw or treated water that is
considered safe to drink.
Potentially Responsible Party (PRP) - Any
individual or company that is potentially
responsible for or has contributed to a spill or
other contamination at a Superfund site.
Whenever possible, EPA requires PRPs to
clean up sites they have contaminated.
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Pretreatment - Methods used by industry and
other non-household sources of wastewater to
remove, reduce, or alter the pollutants in
wastewater before discharge to a POTW.
Primary Treatment - First stage of waste-
water treatment in which solids are removed
by screening and settling.
Process Wastewater - Any water which
comes into contact with any raw material,
product, by-product, or waste.
Public Comment Period - The time allowed
for the members of an affected community to
express views and concerns regarding an
action proposed to be taken by EPA, such as a
rulemaking, permit, or Superfund remedy
selection.
Public Water System - Any water system that
regularly supplies piped water to the public
for consumption, serving at least an average of
25 individuals per day for at least 60 days per
year, or has at least 15 service connections.
Publicly Owned Treatment Works (POTW)
A municipal or public service district
sewage treatment system.
Quality Assurance/Quality Control - A sys-
tem of procedures, checks, audits, and correc-
tive actions to ensure that all technical, opera-
tional, monitoring, and reporting activities are
of the highest achievable quality.
Quench Tank - A water-filled tank used to
cool incinerator residue or hot materials from
industrial processes.
Radioactive Waste - Any waste that emits
energy as rays, waves, or streams of energetic
particles. Radioactive materials are often mixed
with hazardous waste, usually from nuclear
reactors, research institutions, or hospitals.
Radon - A colorless, naturally occurring gas
formed by radioactive decay of radium atoms.
Radon accumulating in basements and other
areas of buildings without proper ventilation
has been identified as a leading cause of lung
cancer.
Raw Water - Intake water prior to any treat-
ment or use.
Reactivity - Refers to those hazardous wastes
that are normally unstable and readily undergo
violent chemical change but do not explode.
Receiving Waters - A river, lake, ocean,
stream, or other body of water into which
wastewater or treated effluent is discharged.
Recharge Area - An area of land where there
is a net annual transfer of water from the sur-
face to ground water; where rainwater soaks
through the earth to reach an aquifer.
Recycling - Reusing materials and objects in
original or changed forms rather than discard-
ing them as wastes.
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Record of Decision (ROD) - A public docu-
ment that explains which cleanup alternative
was selected for a Superfund site.
Red Bag Waste - see definition for Medical
Waste.
Reference Dose (RfD) - The particular con-
centration of a chemical that is known to cause
health problems. A standard that also may be
referred to as the acceptable daily intake.
Refine - To remove impurities.
Regional Response Team (RRT) - There are
13 RRTs, one for each of 10 federal regions,
plus one for Alaska, one for the Caribbean,
and one for the Pacific Basin. Each RRT main-
tains a Regional Contingency Plan and has
state and federal government representation.
EPA and the U.S. Coast Guard cochair the
RRTs. Like the NRT, RRTs are planning, poli-
cy, and coordinating bodies and do not
respond directly to pollution incidents but do
provide assistance when requested by the fed-
eral On-Scene Coordinator. RRTs also pro-
vide assistance to SERCs and LEPCs in local
preparedness, planning, and training for
emergency response.
Registration - Formal listing with EPA of a
new pesticide before sale or distribution. EPA
is responsible for pre-market licensing of pes-
ticides on the basis of data demonstrating no
unreasonable adverse health or environmental
effects when applied according to approved
label directions.
Release - Any spilling, leaking, pumping,
pouring, emitting, emptying, discharging,
injecting, escaping, leaching, dumping, or dis-
posing into the environment of a hazardous
or toxic chemical, or extremely hazardous
substance.
Remedial Action - The actual construction or
clean-up phase of a Superfund site cleanup.
Reportable Quantity (RQ) - Amount of a
hazardous or extremely hazardous sub-
stance that, if released into the environment,
must be reported to the NRC, the SERC, and
the LEPC under Section 304 of EPCRA.
Residual Risk - The risk associated with pol-
lutants after the application of maximum
achievable control technology or MACT.
Resource Recovery - The extraction of useful
materials or energy from solid waste. Such
materials can include paper, glass, and metals
that can be reprocessed for re-use. Resource
recovery also is employed in pollution pre-
vention.
Responsiveness Summary - A summary of
oral and written comments received by EPA
during a public comment period on key doc-
uments or actions proposed to be taken, and
EPA's response to those comments.
Risk - A measure of the chance that damage
to life, health, property, or the environment
will occur.
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Risk Assessment - A process to determine
the increased risk from exposure to environ-
mental pollutants together with an estimate of
the severity of impact. Risk assessments use
specific chemical information plus risk factors.
Risk Communication - The process of
exchanging information about levels or signif-
icance of health or environmental risk.
Risk Factor - A characteristic (e.g., race, sex,
age, obesity) or variable (e.g., smoking, expo-
sure) associated with increased chance of tox-
ic effects. Some standard risk factors used in
general risk assessment calculations include
average breathing rates, average weight, and
average human life span.
Rodenticide - A pesticide or other agent used
to kill rats and other rodents or to prevent
them from damaging food, crops, or forage.
Sanitary Water - Water discharged from
restrooms, showers, food preparation facili-
ties, or other nonindustrial operations; also
known as "gray water."
Scientific Support Coordinators (SSC) -
Scientific and technical advisors in coastal and
marine areas from the National Oceanic and
Atmospheric Administration (NOAA) who
serve as members of the federal On-Scene
Coordinator's staff. Their capabilities include
contingency planning, surface/subsurface tra-
jectory forecasting and hindcasting, resource
risk analysis, and liaison to other scientists.
Scrubbing - A common method of reducing
stack air emissions; removal of impurities by
spraying a liquid that concentrates the impu-
rities into waste.
Secondary Treatment - The second step tak-
en by a Publicly Owned Treatment Works
in which bacteria consume the organic parts
of the waste. This treatment usually removes
about 90% of all solids and oxygen-demand-
ing substances.
Sediment - Topsoil, sand, and minerals
washed from the land into water, usually after
rain or snow melt. Sediments collecting in
rivers, reservoirs, and harbors can destroy fish
and wildlife habitat and cloud the water so
that sunlight cannot reach aquatic plants. Loss
of topsoil from farming, mining, or building
activities can be prevented through a variety
of erosion-control techniques.
Septic tank - An underground tank to collect
wastes from homes that are not connected to
a municipal sewer system. Waste goes from
the home to the tank and is decomposed by
bacteria. Solids and dead bacteria settle to the
bottom as sludge while the liquid portion
flows into the ground through drains. While
properly placed and maintained septic sys-
tems can effectively treat domestic waste-
water, others are a major source of ground
water and surface water pollution.
Sewer - A channel or conduit that carries
wastewater and stormwater to a treatment
plant or receiving waters. "Sanitary" sewers
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carry household, industrial, and commercial
waste. "Storm" sewers carry runoff from rain
or snow.
Siting - Choosing a location for a facility.
Sludge - The residue (solids and some water)
produced as a result of raw or wastewater
treatment.
Slurry - A pumpable mixture of solids and
fluid.
Small Quantity Generator (SQG) - Persons
or facilities that produce 220-2,200 pounds
per month of hazardous waste. SQGs are
required to keep more records than condi-
tionally exempt generators. SQGs may
include automotive shops, dry cleaners, pho-
tographic developers, and a host of other
small enterprises. SQGs comprise by far the
vast majority of hazardous waste generators.
Smog - Dust, smoke, or chemical fumes that
pollute the air and make hazy, unhealthy con-
ditions (literally, the word is a blend of smoke
and fog). Automobile, truck, bus, and other
vehicle exhausts and particulates are usually
trapped close to the ground, obscuring visibil-
ity and contributing to a number of respirato-
ry problems.
Solid Waste - As defined under RCRA, any
solid, semi-solid, liquid, or contained gaseous
materials discarded from industrial, commer-
cial, mining, or agricultural operations, and
from community activities. Solid waste
includes garbage, construction debris, com-
mercial refuse, sludge from water supply or
waste treatment plants, or air pollution con-
trol facilities, and other discarded materials.
Solid Waste Management Facility - Any dis-
posal or resource recovery system; any sys-
tem, program, or facility for resource conser-
vation; any facility for the treatment of solid
wastes.
Source Reduction - The design, manufacture,
purchase, or use of materials (such as prod-
ucts and packaging) to reduce the amount or
toxicity of garbage generated. Source reduc-
tion can help reduce waste disposal and han-
dling charges because the costs of recycling,
municipal composting, landfilling, and com-
bustion are avoided. Source reduction con-
serves resources and reduces pollution.
Source Separation - Organizing materials by
type (such as paper, metal, plastic, and glass)
so that these items can be recycled instead of
thrown away. For example, many of us sepa-
rate these items from the rest of our house-
hold and office wastes. Industries also orga-
nize materials in this fashion.
Standard Industrial Classification Code
(SIC Code) - A method of grouping indus-
tries with similar products or services and
assigning codes to these groups.
State Emergency Response Commission
(SERC) - The agency appointed by the Gov-
ernor to oversee the administration of EPCRA
at the state level. This commission designates
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and appoints members to LEPCs and reviews
emergency response plans for cities and
counties.
Surface Impoundment - Treatment, storage,
or disposal of liquid hazardous wastes in
ponds.
Surface Water - All water naturally open to
the atmosphere (rivers, lakes, reservoirs, ponds,
streams, seas, estuaries) and all springs, wells,
or other collectors directly influenced by sur-
face water.
Surfactant - A detergent compound that pro-
motes lathering.
Suspended Solids - Solids that either float
on the surface or are suspended in water,
wastewater, or other liquids.
Sustainable Agriculture - Environmentally
friendly methods of farming that allow the pro-
duction of crops or livestock without damage to
the farm as an ecosystem, including effects on
soil, water supplies, biodiversity, or other sur-
rounding natural resources. The concept of sus-
tainable agriculture is an "intergenerational" one
in which we pass on a conserved or improved
natural resource base instead of one which has
been depleted or polluted. Terms often associat-
ed with farms or ranches that are self-sustaining
include "low-input," organic, "ecological," "bio-
dynamic," and "permaculture."
Synergism - The cooperative action of two or
more organisms producing a greater total result
than the sum of their independent effects;
chemicals or muscles in synergy enhance the
effectiveness of one another beyond what an
individual could have produced.
Technical Assistance Grant (TAG) - EPA
grants of up to $50,000 for citizens' groups to
obtain assistance in interpreting information
related to cleanups at Superfund sites. Grants
are used by such groups to hire technical
advisors to help them understand the site-
related information for the duration of
response activities.
Ten-to-the-Minus-Sixth (10"^) - Used in risk
assessments to refer to the probability of
risk. Literally means a chance of one in a mil-
lion. Similarly, ten-to-the-minus-fifth means a
probability of one in 100,000, and so on.
Teratogen - A substance capable of causing
birth defects.
Tertiary Treatment - An enhancement of
normal sewage treatment operations to pro-
vide water of potable quality using further
chemical and physical treatment; the highest
drinking water standard achieved in the U.S.
Threshold Limit Value (TLV) - The concen-
tration of an airborne substance that a healthy
person can be exposed to for a 40-hour work
week without adverse effect; a workplace
exposure standard.
Tolerance - Permissible residue level for pes-
ticides in raw agricultural produce and
processed foods. Whenever a pesticide is regis-
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tered for use on a food or feed crop, a toler-
ance must be established. EPA establishes the
tolerance levels, which are enforced by the
Food and Drug Administration and the
Department of Agriculture.
Tonnage - The amount of waste that a land-
fill accepts, usually expressed as tons per
month. The rate at which a landfill accepts
waste is limited by the landfill's permit.
Total dissolved solids (TDS) - The quantity
of dissolved material in a given volume of
water.
Toxic Chemical - Substances that can cause
severe illness, poisoning, birth defects, dis-
ease, or death when ingested, inhaled, or
absorbed by living organisms.
Toxic Cloud - An airborne mass of gases,
vapors, fumes, or aerosols of toxic materials.
Toxic Release Inventory (TRI) - A database
of annual toxic releases from certain manufac-
turers compiled from EPCRA Section 313
reports. Manufacturers must report annually
to EPA and the states the amounts of almost
350 toxic chemicals and 22 chemical cate-
gories that they release directly to air, water,
or land, inject underground, or transfer to
off-site facilities. EPA compiles these reports
and makes the information available to the
public under the "Community Right-to-
Know" portion of the law.
Toxic Substance - A chemical or mixture
that can cause illness, death, disease, or birth
defects. The quantities and exposures neces-
sary to cause these effects can vary widely.
Many toxic substances are pollutants and
contaminants in the environment.
Toxicity Characteristic Leaching Proce-
dure (TCLP) - A test designed to determine
whether a waste is hazardous or requires
treatment to become less hazardous; also can
be used to monitor treatment techniques for
effectiveness.
Toxicity Testing - Biological testing (usually
with an invertebrate, fish, or small mammal)
to determine the adverse effects, if any, of a
chemical, compound, or effluent.
Trade Secret - Any confidential formula, pat-
tern, process, device, information, or set of
data that is used in a business to give the
owner a competitive advantage. Such infor-
mation may be excluded from public review.
Treatment, Storage, and Disposal Facility
(TSD) - Refers to any facility which treats,
stores, or disposes of hazardous wastes.
Ultraviolet Rays - Radiation from the sun in
the invisible portion of the spectrum. Some
UV rays (UV-A) enhance plant life and are
useful in certain medical and dental proce-
dures. Other UV rays (UV-B) can cause skin
cancer or other tissue damage. The ozone
layer in the atmosphere partly shields us from
ultraviolet rays reaching the earth's surface.
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Underground Injection Control (UIC) - A
program under the Safe Drinking Water Act
that regulates the use of wells to pump fluids
underground.
Underground Storage Tank (UST) - A tank
and any underground piping connected to
the tank that has 10% or more of its volume
(including pipe volume) beneath the surface
of the ground. USTs are designed to hold
gasoline, other petroleum products, and haz-
ardous materials.
Vapor - The gas given off by substances that
are solids or liquids at ordinary atmospheric
pressure and temperatures.
Vapor Dispersion - The movement of vapor
clouds or plumes in the air due to wind,
gravity, spreading, and mixing.
Vapor Recovery System - A system by
which the volatile gases from gasoline are
captured instead of being released into the
atmosphere. Recovery systems may be
required for gasoline stations in some cities
and other non-attainment areas.
Vent - The connection and piping through
which gases enter and exit a piece of equip-
ment.
Volatile - Any substance which evaporates
quickly.
Volatile Organic Compounds (VOC) - Any
organic compound which evaporates readily
to the atmosphere. VOCs contribute signifi-
cantly to photochemical smog production
and certain health problems.
Wasteload Allocation (WLA) - The portion
of a stream's total assimilative capacity
assigned to an individual discharger.
Wastewater Treatment Plant - A facility
containing a series of tanks, screens, filters,
and other processes by which pollutants are
removed from water. Most treatments include
chlorination to attain safe drinking water
standards.
Water Quality Standard (WQS) - The com-
bination of a designated use and the maxi-
mum concentration of a pollutant which will
protect that use for any given body of water.
For example, in a trout stream, the concentra-
tion of iron should not exceed 1 mg/1.
Water Table - The boundary between the
saturated and unsaturated zones. Generally,
the level to which water will rise in a well
(except artesian wells).
Wellhead Protection Area - A protected sur-
face and subsurface zone surrounding a well
or well field that supplies a public water sys-
tem and through which contaminants could
likely reach well water.
Wetlands - Areas that are soaked or flooded
by surface or ground water frequently
enough or for sufficient duration to support
plants, birds, animals, and aquatic life. Wet-
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lands generally include swamps, marshes,
bogs, estuaries, and other inland and coastal
areas, and are federally protected. Wetlands
frequently serve as recharge/discharge areas
and are known as "nature's kidneys" since
they help purify water. Wetlands also have
been referred to as natural sponges that
absorb flood waters, functioning like natural
tubs to collect overflow. Wetlands are impor-
tant wildlife habitats, breeding grounds, and
nurseries because of their biodiversity. Many
endangered species as well as countless
estuarine and marine fish and shellfish, mam-
mals, waterfowl, and other migratory birds
use wetland habitat for growth, reproduction,
food, and shelter. Wetlands are among the
most fertile, natural ecosystems in the world
since they produce great volumes of food
(plant material).
Wildlife Refuge - An area designated for the
protection of wild animals, within which
hunting and fishing are either prohibited or
strictly controlled.
Wood Treatment Facility - An industrial
facility which treats lumber and other wood
products for outdoor use. The process
involves use of chromated copper arsenate
and other toxic chemicals which are regulat-
ed as hazardous materials.
Z-list - OSHA's Toxic and Hazardous Sub-
stances Tables (Z-l, Z-2, and Z-3) of air cont-
aminants; any material found on these tables
is considered hazardous.
Zone of Saturation - The layer beneath the
surface of the land in which all openings are
filled with water.
Xenobiotic - A term for non-natural or man-
made substances found in the environment
(i.e., synthetics, plastics).
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major
laws
If you are interested in becoming active in
environmental, health, and community safety
issues, you will need to understand many of
the following federal laws. These laws, and
others enacted by states, have various require-
ments and are enforced by various agencies.
We have presented a brief description of the
intent of each law. For more details, you
should obtain a copy from your local library,
state library, or the relevant federal or state
agency. Federal and state officials, community
organizations, and interest groups will help
you gain a working knowledge of these laws.
the clean air act (CAA)
42 U.S.C.s/s 7401 etseq. (1970)
The Clean Air Act is the comprehensive fed-
eral law which regulates air emissions from
area, stationary, and mobile sources. This law
authorizes the U.S. Environmental Protection
Agency (EPA) to establish National Ambient
Air Quality Standards (NAAQS) to protect
public health and the environment. The goal
of the Act was to set and achieve NAAQS in
every state by 1975. This setting of maximum
pollutant standards was coupled with direct-
ing the states to develop state implementation
plans (SIPs) applicable to appropriate indus-
trial sources in the state.
The Act was amended in 1977 primarily to set
new goals (dates) for achieving attainment of
NAAQS since many areas of the country had
failed to meet the deadlines. The 1990 amend-
ments to the Clean Air Act in large part were
intended to meet unaddressed or insufficiently
addressed problems such as acid rain, ground
level ozone, stratospheric ozone depletion,
and air toxics.
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the clean water act (CWA.)
33U.S.C.S/S 121 etseq. (1977)
The Clean Water Act is a 1977 amendment
to the Federal Water Pollution Control Act of
1972, which set the basic structure for regu-
lating discharges of pollutants to waters of
the United States. This law gave EPA the
authority to set effluent standards on an
industry-by-industry basis (technology-based)
and continued the requirements to set water
quality standards for all contaminants in sur-
face waters. The CWA makes it unlawful for
any person to discharge any pollutant from a
point source into navigable waters unless a
permit (NPDES) is obtained under the Act.
The 1977 amendments focused on toxic pol-
lutants. In 1987, the CWA was reauthorized
and again focused on toxic substances,
authorized citizen suit provisions, and funded
sewage treatment plants (POTWs) under the
Construction Grants Program.
The CWA provides for the delegation by
EPA of many permitting, administrative, and
enforcement aspects of the law to state gov-
ernments. In states with the authority to
implement CWA programs, EPA still retains
oversight responsibilities.
the comprehensive
environmental response,
compensation, and liability
act (CERCLA or SuperfUnd)
42 U.S.C.s/s 9601 etseq.
CERCLA (pronounced SERK-la) provides a
federal "Superfund" to clean up uncontrolled
or abandoned hazardous waste sites as well
as accidents, spills, and other emergency
releases of pollutants and contaminants into
the environment. Through the Act, EPA was
given power to seek out those parties responsi-
ble for any release and assure their cooperation
in the cleanup. EPA cleans up orphan sites
when potentially responsible parties (PRPs)
cannot be identified or located, or when they
fail to act. Through various enforcement tools,
EPA obtains private party cleanup through
orders, consent decrees, and other small par-
ty settlements. EPA also recovers costs from
financially viable individuals and companies
once a response action has been completed.
EPA is authorized to implement the Act in all
50 states and U.S. territories. Superfund site
identification, monitoring, and response activ-
ities in states are coordinated through the
state environmental protection or waste man-
agement agencies.
the emergency planning &
community right-to-know
act (EPCRA)
42U.S.C.I 1011 etseq. (1986)
Also known as Title III of SARA, EPCRA was
enacted by Congress as the national legislation
on community safety. This law was designed to
help local communities protect public health,
safety, and the environment from chemical
hazards.
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To implement EPCRA, Congress required
each state to appoint a State Emergency
Response Commission (SERC). The SERCs
were required to divide their states into
Emergency Planning Districts and to name a
Local Emergency Planning Committee
(LEPC) for each district. Broad representa-
tion by fire fighters, health officials, govern-
ment and media representatives, community
groups, industrial facilities, and emergency
managers ensures that all necessary elements
of the planning process are represented.
the endangered species act
7U.S.C. 136; 16 U.S.C. 460etseq. (1973)
The Endangered Species Act provides a pro-
gram for the conservation of threatened and
endangered plants and animals and the habi-
tats in which they are found. The U.S. Fish
and Wildlife Service (FWS) of the Depart-
ment of Interior maintains the list of 632
endangered species (326 are plants) and 190
threatened species (78 are plants). Species
include birds, insects, fish, reptiles, mam-
mals, crustaceans, flowers, grasses, and trees.
Anyone can petition FWS to include a species
on this list or to prevent some activity, such
as logging, mining, or dam building. The law
prohibits any action, administrative or real,
that results in a "taking" of a listed species, or
adversely affects habitat. Likewise, import,
export, interstate, and foreign commerce of
listed species are all prohibited.
EPA's decision to register a pesticide is based
in part on the risk of adverse effects on
endangered species as well as environmental
fate (how a pesticide will effect habitat).
Under FIFRA, EPA can issue emergency sus-
pensions of certain pesticides to cancel or
restrict their use if an endangered species will
be adversely affected. Under a new program,
EPA, FWS, and USDA are distributing hun-
dreds of county bulletins which include habi-
tat maps, pesticide use limitations, and other
actions required to protect listed species.
In addition, we are enforcing regulations under
various treaties, including the Convention on
International Trade in Endangered Species of
Wild Fauna and Flora (CITES). The U.S. and
70 other nations have established procedures
to regulate the import and export of imperiled
species and their habitat. The Fish and Wildlife
Service works with U.S. Customs agents to stop
the illegal trade of species, including the Black
Rhino, African elephants, tropical birds and
fish, orchids, and various corals.
the federal insecticide,
fungicide and rodenticide
act (FIFRA)
7 U.S.C. s/s 135 etseq. (1972)
The primary focus of FIFRA was to provide
federal control of pesticide distribution, sale,
and use. EPA was given authority under
FIFRA not only to study the consequences of
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pesticide usage but also to require users
(farmers, utility companies, and others) to
register when purchasing pesticides. Through
later amendments to the law, users also must
take exams for certification as applicators of
pesticides. All pesticides used in the U.S. must
be registered (licensed) by EPA. Registration
assures that pesticides will be properly labeled
and that, if used in accordance with specifica-
tions, will not cause unreasonable harm to the
environment.
the (federal) freedom of
information act (FOIAj
U.S.C.s/8 552 (1966)
The Freedom of Information Act provides
specifically that "any person" can make
requests for government information. Citizens
who make requests are not required to identify
themselves or explain why they want the infor-
mation they have requested. The position of
Congress in passing FOIA was that the work-
ings of government are "for and by the people"
and that the benefits of government informa-
tion should be made available to everyone.
All branches of the federal government must
adhere to the provisions of FOIA with certain
restrictions for work in progress (early drafts),
enforcement confidential information, classified
documents, and national security information.
the national environmental
policy act (NEPA)
42 U.S.C.s/5 4321 etseq. (1969)
The National Environmental Policy Act was
one of the first laws ever written that estab-
lishes the broad national framework for pro-
tecting our environment. NEPA's basic policy
is to assure that all branches of government give
proper consideration to the environment prior
to undertaking any major federal action which
significantly affects the environment. NEPA
requirements are invoked when airports, build-
ings, military complexes, highways, parkland
purchases, and other such federal activities are
proposed. Environmental Assessments (EAs)
and Environmental Impact Statements
(EISs), which are assessments of the likelihood
of impacts from alternative courses of action,
are required from all federal agencies and are
the most visible NEPA requirements.
the occupational
safety and health act
29 U.S.C.61 etseq. (1970)
Congress passed the Occupational and Safety
Health Act to ensure worker and workplace
safety. Their goal was to make sure employers
provide their workers a place of employment
free from recognized hazards to safety and
health, such as exposure to toxic chemicals,
excessive noise levels, mechanical dangers, heat
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or cold stress, or unsanitary conditions. In
order to establish standards for workplace
health and safety, the Act also created the
National Institute for Occupational Safety and
Health (NIOSH) as the research institution
for the Occupational Safety and Health
Administration (OSHA). OSHA is a division
of the U.S. Department of Labor which over-
sees the administration of the Act and
enforces federal standards in all 50 states.
the oil pollution act of 1990
33 U.S.C. Section 2702 to 2761
The Oil Pollution Act (OPA) of 1990 stream-
lined and strengthened EPA's ability to prevent
and respond to catastrophic oil spills. A trust
fund financed by a tax on oil is available to
clean up spills when the responsible party is
incapable or unwilling to do so. The OPA
requires oil storage facilities and vessels to
submit to the federal government response
plans detailing how they will respond to large
discharges. EPA has published regulations for
aboveground storage facilities; the Coast
Guard has done so for oil tankers. The OPA
also requires the development of Area Contin-
gency Plans to prepare and plan for oil spill
response on a regional scale.
the pollution prevention act
42 U.S.C. 13101 and 13102, s/s 6602 et
seq. (1990)
The Pollution Prevention Act focused industry,
government, and public attention on reducing
the amount of pollution produced through
cost-effective changes in production, operation,
and raw materials use. Opportunities for
source reduction are often not realized
because existing regulations, and the industrial
resources required for compliance, focus on
treatment and disposal. Source reduction is
fundamentally different and more desirable
than waste management or pollution control.
Pollution prevention also includes other
practices that increase efficiency in the use of
energy, water, or other natural resources, and
protect our resource base through conserva-
tion. Practices include recycling, source
reduction, and sustainable agriculture.
the resource conservation
and recovery act (RCRA.)
42U.S.C.s/s321etseq. (1976)
RCRA (pronounced "rick-rah") gave EPA the
authority to control hazardous waste from
"cradle-to-grave." This includes the genera-
tion, transportation, treatment, storage, and
disposal of hazardous waste. RCRA also set
forth a framework for the management of
non-hazardous solid wastes.
The 1986 amendments to RCRA enabled EPA
to address environmental problems that
could result from underground tanks storing
petroleum and other hazardous substances.
RCRA focuses only on active and future facili-
ties and does not address abandoned or his-
torical sites (seeCERCLA).
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HSWA (pronounced "hiss-wa") - The federal
Hazardous and Solid Waste Amendments.
The 1984 amendments to RCRA which
required phasing out land disposal of haz-
ardous waste. Some of the other mandates of
this strict law include increased enforcement
authority for EPA, more stringent hazardous
waste management standards, and a compre-
hensive underground storage tank program.
the safe drinking water act
(SDWA)
43U.S.C.s/s300fetseq.(1974)
The Safe Drinking Water Act was established
to protect the quality of drinking water in the
U.S. This law focuses on all waters actually or
potentially designated for drinking use,
whether from above ground or underground
sources. The Act authorized EPA to establish
safe standards of purity and required all own-
ers or operators of public water systems to
comply with primary (health-related) stan-
dards. State governments, which assume this
power from EPA, also encourage attainment
of secondary standards (nuisance-related).
the super-fund amendments
and reauthorization act
(SARA)
42 U.S.C. 9601 etseq. (1986)
The Superfund Amendments and Reautho-
rization Act of 1986 reauthorized CERCLA
to continue cleanup activities around the
country. Several site-specific amendments,
definitions, clarifications, and technical
requirements were added to the legislation,
including additional enforcement authorities.
Title III of SARA also authorized the Emer-
gency Planning and Community Right-to-
KnowAct (EPCRA).
the toxic substances
control act (TSCA)
15 U.S.C.s/s 2601 etseq. (1976)
The Toxic Substances Control Act of 1976
was enacted by Congress to test, regulate, and
screen all chemicals produced or imported
into the U.S. Many thousands of chemicals
and their compounds are developed each year
with unknown toxic or dangerous characteris-
tics. To prevent tragic consequences, TSCA
requires that any chemical that reaches the
consumer market place be tested for possible
toxic effects prior to commercial manufacture.
Any existing chemical that poses health and
environmental hazards is tracked and report-
ed under TSCA. Procedures also are autho-
rized for corrective action under TSCA in cas-
es of cleanup of toxic materials contamina-
tion. TSCA supplements other federal
statutes, including the Clean Air Act and the
Toxic Release Inventory under EPCRA.
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government agencies
Throughout this handbook we have referred
to organizations, agencies, and offices to con-
tact for further information. The following is
a list of several of those organizations and
agencies dealing with health and environ-
mental protection. For each citation, a cur-
rent address and phone number are provided,
as well as a brief notation of responsibilities
and/or interests of the group. This list is pro-
vided for quick reference when specific issues
arise but is by no means complete.
federal agencies for health &
environmental protection
U.S. Environmental Protection Agency (EPA)
401 MStreet, S.W.
Washington, DC 20460
(202) 260-2080
Public Information Center, open 9 AM
to 4:30 PM, Monday - Friday
78
Responsible for: working with state and local
governments to control and prevent pollution
in areas of solid and hazardous waste, pesti-
cides, water, air, drinking water, and toxic
and radioactive substances. When contacting
EPA, we suggest starting with your Regional
Office. If the Regional Office is unable to
assist you, your questions may be directed to
EPA Headquarters in
Washington, DC.
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U.O. JlLr A. regional offices
Region 1
U.S. EPA (Connecticut, Massachusetts, Maine,
New Hampshire, Rhode Island, Vermont)
JFK Federal Building
1 Congress Street
Boston, MA 02203
617/565-3420
Region 2
U.S. EPA (New Jersey, New York, Puerto
Rico, Virgin Islands)
290 Broadway
New York, NY 10007-1866
212/637-3662
Region 3
U.S. EPA (Delaware, Maryland, Pennsylvania,
Virginia, West Virginia, District of Columbia)
841 Chestnut Building
Philadelphia, PA 19107
1-800/438-2474
Region 4
U.S. EPA (Alabama, Florida, Georgia,
Kentucky, Mississippi, North Carolina,
South Carolina, Tennessee)
345 Courtland Street, NE
Atlanta, GA 30365
404/347-3004
Region 5
U.S. EPA (Illinois, Indiana, Michigan,
Minnesota, Ohio, Wisconsin)
77 West Jackson
Chicago, IL 60604
312/353-2000
Region 6
U.S. EPA (Arkansas, Louisiana,
New Mexico, Oklahoma, Texas)
1445 Ross Avenue
Dallas, TX 75202
214/665-6444
Region 7
U.S. EPA (Iowa, Kansas, Missouri, Nebraska)
726 Minnesota Avenue
Kansas City, KS 66401
913/551-7000
Region 8
U.S. EPA (Colorado, Montana, North
Dakota, South Dakota, Utah, Wyoming)
999 18th Street
Denver, CO 80202-2466
303/293-1603
Region 9
U.S. EPA (Arizona, California, Hawaii,
Nevada, Guam, American Samoa)
75 Hawthorne Street
San Francisco, CA 94105
415/744-1305
Region 10
U.S. EPA (Idaho, Washington, Oregon,
Alaska)
1200 Sixth Avenue
Seattle, WA 98101
206/553-1200
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U.S. department of justice (DOj) U.S. coast guard
10th and Constitution Ave., N.W.
Washington, D.C. 20530
202/514-2007
Responsible for: all enforcement actions that
must be filed in court, and organizing eviden-
tiary and other documents to prepare for and
conduct litigation. Litigation includes the pro-
tection, use, and development of the nation's
natural resources and public lands, wildlife
protection, Indian rights and claims, cleanup
of hazardous waste sites, acquisition of private
property for federal use, and defense of envi-
ronmental challenges to government programs
and activities. DOJ's Environment and Natural
Resources Division is the nation's environmen-
tal lawyer and the largest environmental law
firm in the country.
U.O. department of
transportation (DOT)
400 7th Street, S.W.
Washington, D.C. 20590
202/366-4570
Responsible for: setting standards for safety and
providing funds to plan, construct and operate
transportation systems by rail, highway, air, or
water and providing law enforcement and traf-
fic management services for the nation's air-
space and waterways. DOT also regulates man-
ufacturers of containers and transporters of
hazardous materials.
2100 2nd St., S.W.
Washington, D.C. 20593
202/267-1587
Responsible for: port safety, maritime law
enforcement, boating safety, search and res-
cue, aids to navigation, merchant marine safe-
ty, and environmental protection. The Coast
Guards works with EPA on marine protection
programs, including regulating the transporta-
tion of hazardous cargoes, oil pollution
cleanup, and marine salvage.
federal emergency manage-
ment agency (FKMAJ
P.O. Box 70274
Washington, D.C. 20024
202/646-4600
Responsible for: providing a federal focus on
emergency management in the United States.
This includes natural disasters such as earth-
quakes, hurricanes, tornadoes, and floods, tech-
nological calamities, and national security crises.
U.O. geological survey (USGSJ
12201 Sunrise Valley Drive
Mail Stop 119
Reston, VA 22092
703/648-4460
Responsible for: analyzing the quantity and
quality of surface and ground water and pre-
80
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cipitation, and conducting research in geology
and hydrology. Programs include extensive
topographic and land-use mapping, energy
and mineral resource assessments, evaluations
of natural disasters, and space exploration.
U.O. department of health
& human servicesl
National Institute for Occupational Safety
and Health (NIOSH)
1600 Clifton Road, N.E.,
Building 1, Room 3007
Atlanta, GA 30333
1-800/356-4674
Centers for Disease Control and Prevention
(CDC)
1600 Clifton Road, N.E., Building 1
Atlanta, GA 30333
404/639-2888
Agency for Toxic Substances and Disease
Registry (ATSDR)
1600 Clifton Road, N.E., Building 1
Atlanta, GA 30333
404/639-2888
NIOSH provides research and evaluation
studies of occupational injuries and hazardous
substances in the workplace. These criteria are
used by OSHA for setting workplace safety
standards. The CDC tracks and evaluates inci-
dence of disease and performs epidemiological
studies. ATSDR conducts research focused on
toxic substances and their effects on public
health. Programs include health studies, sub-
stance-specific research, and maintaining vari-
ous disease registries.
U.O. department of labor
Occupational Safety and Health
Administration (OSHA)
200 Constitution Ave., N.W.
Washington, D.C. 20210
202/219-8151
Responsible for: issuing standards and rules for
safe and healthful working conditions, tools,
equipment, facilities, and processes. Employ-
ers have the general duty of providing their
workers a place of employment free from rec-
ognized hazards to safety and health, and
must comply with OSHA standards. OSHA
conducts workplace inspections to assure
standards are followed.
National Oceanic and Atmospheric
Administration (NOAA)
14th and Constitution Ave., N.W., Rm 6013
Washington, D.C. 20230
202/482-6090
Responsible for: environmental satellite and
data information, oceanic and atmospheric
research, sustainable development, coastal
management programs, cleanup of oil spills,
the National Weather Service, and the
National Marine Fisheries Service.
81
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KPA.
rrtimt>ers
In many situations, a phone call to EPA can
provide you with the information you need to
start working with environmental issues.
Below is a list of some of the most useful EPA
telephone numbers. Although numbers
change periodically, these were correct at the
time of printing. All telephone numbers are in
the Eastern Standard Time Zone.
general U.S.KPA numbers
Public Information Center
(202) 260-2080
(202) 260-7751
ORD Research Information (Cincinnati)
(513) 569-7562
National Center for Environmental
Publications & Information (Cincinnati)
(513) 489-8190
hotlines listed by topic
Acid Rain
(617) 674-7377
Air Control Technology Assistance Center
(919) 541-0800
Air Risk Hotline
(919) 541-0888
Appropriate Technology (energy: DOE)
(800) 428-2525
Asbestos Ombudsman
(800) 368-5888
Drinking Water
(800) 426-4791
Emergency Planning & Community
Right-to-Know
(800) 535-0202
Environmental Education
(202) 260-4962
82
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Environmental Justice
(800) 962-6215
Green Lights/Energy Star Programs
(202) 775-6650
Ground Water
(202) 260-7786
Hazardous Waste Ombudsman
(800) 262-7937
Indoor Air
(800) 438-4318
National Response Center (U.S. Coast Guard)
(800) 424-8802
Pesticides (health effects, spills)
(800) 858-7378
Pollution Prevention Info. Exchange System
(703) 821-4800
Pollution Prevention Clearinghouse
(202) 260-1023
Radon
(800) 767-7236
RCRA, Superfund, and Underground
Storage Tanks
(800) 424-9346
Small Business
(800) 368-5888
Solid Waste Information Clearinghouse
(800) 677-9424
Storm Water, NPDES Permitting
(703) 821-4823
Stratospheric Ozone Protection (CFCs)
(800) 296-1996
Toxic Substances & Asbestos Information
(202) 554-1404
Transporting Hazardous Materials
(DOT/FEMA)
(800) 752-6367
Waste Water
(800) 624-8301
Wetlands
(800) 832-7828
83
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we want your comments!
Additional copies of this Guide may be
obtained from:
U.S. EPA
Public Information Center (3404)
401M Street, SW
Washington, D.C. 20460
(202) 260-7751
This booklet is intended to help you address
environmental issues that interest you. Help
us do a better job by letting us know what
information you need. Questions or sugges-
tions for future revisions of this Guide can be
sent to the Project Manager, mail code
(2201A),orcall (202) 564-2618.
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= GLOSSARY =
ABCDEFGH
I J K L M N O P
QR STUVWX
Y Z
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PART 1—STATEMENT OF ORGANI-
ZATION AND GENERAL INFOR-
MATION
Subpart A—Introduction
Sec.
1.1 Creation and authority.
1.3 Purpose and functions.
1.5 Organization and general information.
1.7 Location of principal offices.
Subpart B—Headquarters
1.21 General.
1.23 Office of the Administrator.
1.25 Staff Offices.
1.27 Offices of the Associate Administrators.
1.29 Office of Inspector General.
1.31 Office of General Counsel.
1.33 Office of Administration and Resources Manage-
ment.
1.35 Office of Enforcement and Compliance Monitor-
ing.
1.37 Office of External Affairs.
1.39 Office of Policy, Planning and Evaluation.
1.41 Office of Air and Radiation.
1.43 Office of Prevention, Pesticides and Toxic Sub-
stances.
1.45 Office of Research and Development.
1.47 Office of Solid Waste and Emergency Response.
1.49 Office of Water.
Subpart C—Field Installations
1.61 Regional Offices.
AUTHORITY: 5 U.S.C. 552.
SOURCE: 50 FR 26721, June 28, 1985, unless otherwise
noted.
Subpart A—Introduction
§ 1.1 Creation and authority.
Reorganization Plan 3 of 1970, established the
U.S. Environmental Protection Agency (EPA) in
the Executive branch as an independent Agency,
effective December 2, 1970.
§ 1.3 Purpose and functions.
The U.S. Environmental Protection Agency per-
mits coordinated and effective governmental action
to assure the protection of the environment by
abating and controlling pollution on a systematic
basis. Reorganization Plan 3 of 1970 transferred to
EPA a variety of research, monitoring, standard
setting, and enforcement activities related to pollu-
tion abatement and control to provide for the treat-
ment of the environment as a single interrelated
system. Complementary to these activities are the
Agency's coordination and support of research and
antipollution activities carried out by State and
local governments, private and public groups, indi-
viduals, and educational institutions. EPA rein-
forces efforts among other Federal agencies with
respect to the impact of their operations on the en-
vironment.
§1.5 Organization and general infor-
mation.
(a) The U.S. Environmental Protection Agency's
basic organization consists of Headquarters and 10
Regional Offices. EPA Headquarters in Washing-
ton, DC maintains overall planning, coordination
and control of EPA programs. Regional Adminis-
trators head the Regional Offices and are respon-
sible directly to the Administrator for the execu-
tion of the Agency's programs within the bound-
aries of their Regions.
(b) EPA's Directives System contains definitive
statements of EPA's organization, policies, proce-
dures, assignments of responsibility, and delega-
tions of authority. Copies are available for public
inspection and copying at the Management and
Organization Division, 401 M Street SW., Wash-
ington, DC 20460. Information can be obtained
from the Office of Public Affairs at all Regional
Offices.
(c) EPA conducts procurement pursuant to the
Federal Property and Administrative Services Act,
the Federal Procurement Regulations, and imple-
menting EPA regulations.
§ 1.7 Location of principal offices.
(a) The EPA Headquarters is in Washington,
DC. The mailing address is 401 M Street SW.,
Washington, DC 20460.
(b) The addresss of (and States served by) the
EPA Regional Offices (see § 1.61) are:
(1) Region I, U.S. Environmental Protection
Agency, room 2203, John F. Kennedy Federal
Building, Boston, MA 02203. (Connecticut,
Maine, Massachusetts, New Hampshire, Rhode Is-
land, and Vermont.)
(2) Region II, U.S. Environmental Protection
Agency, Room 900, 26 Federal Plaza, New York,
NY 10278. (New Jersey, New York, Puerto Rico,
and the Virgin Islands.)
(3) Region III, U.S. Environmental Protection
Agency, 841 Chestnut Street, Philadelphia, PA
19107. (Delaware, Maryland, Pennsylvania, Vir-
ginia, West Virginia, and the District of Colum-
bia.)
(4) Region IV, U.S. Environmental Protection
Agency, 345 Courtland Street NE., Atlanta, GA
30365. (Alabama, Florida, Georgia, Kentucky,
Mississippi, North Carolina, South Carolina, and
Tennessee.)
(5) Region V, U.S. Environmental Protection
Agency, 77 West Jackson Boulevard, Chicago, IL
60604. (Illinois, Indiana, Michigan, Minnesota,
Ohio and Wisconsin.)
1
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§1.21
(6) Region VI, U.S. Environmental Protection
Agency, 1201 Elm Street, Dallas, TX 75270. (Ar-
kansas, Louisiana, New Mexico, Oklahoma, and
Texas.)
(7) Region VII, U.S. Environmental Protection
Agency, 726 Minnesota Avenue, Kansas City, KS
66101. (Iowa, Kansas, Missouri, and Nebraska.)
(8) Region VIII, U.S. Environmental Protection
Agency, 999 18th street, One Denver Place, Den-
ver, CO 80202. (Colorado, Montana, North Da-
kota, South Dakota, Utah, and Wyoming.)
(9) Region IX, U.S. Environmental Protection
Agency, 215 Fremont Street, San Francisco, CA
94105. (Arizona, California, Hawaii, Nevada,
American Samoa, Trust Territories of the Pacific
Islands, Guam, Wake Islands, and the Northern
Marianas.)
(10) Region X, U.S. Environmental Protection
Agency, 1200 Sixth Avenue, Seattle, WA 98101.
(Alaska, Idaho, Oregon, and Washington.)
[50 FR 26721, June 28, 1985, as amended at 62 FR 1833,
Jan. 14, 1997]
Sub pa it B—Headquarters
§1.21 General.
EPA Headquarters is comprised of:
(a) The Office of the Administrator;
(b) Two Associate Administrators and four staff
offices which advise the Administrator on cross-
cutting Agency headquarters and regional issues
and conduct programs with respect to EPA's inter-
face with other national and international govern-
mental organizations;
(c) The Office of Inspector General;
(d) The Office of General Counsel; and
(e) Nine operational offices, each headed by an
Assistant Administrator, responsible for carrying
out EPA's major environmental and administrative
programs.
§ 1.23 Office of the Administrator.
The Environmental Protection Agency is headed
by an Administrator who is appointed by the
President, by and with the consent of the Senate.
The Administrator is responsible to the President
for providing overall supervision to the Agency,
and is assisted by a Deputy Administrator also ap-
pointed by the President, by and with the consent
of the Senate. The Deputy Administrator assists
the Administrator in the discharge of Agency du-
ties and responsibilities and serves as Acting Ad-
ministrator in the absence of the Administrator.
§1.25 Staff Offices.
(a) Office of Administrative Law Judges. The
Office of Administrative Law Judges, under the
supervision of the Chief Administrative Law
Judge, is responsible for presiding over and con-
ducting formal hearings, and issuance of initial de-
cisions, if appropriate, in such proceedings. The
Office provides supervision of the Administrative
Law Judges, who operate as a component of the
Office of Administrative Law Judges, in certain
Agency Regional Offices. The Office provides the
Agency Hearing Clerk.
(b) Office of Civil Rights. The Office of Civil
Rights, under the supervision of a Director, serves
as the principal adviser to the Administrator with
respect to EPA's civil rights programs. The Office
develops policies, procedures, and regulations to
implement the Agency's civil rights responsibil-
ities, and provides direction to Regional and field
activities in the Office's area of responsibilities.
The Office implements and monitors the Agency's
equal employment opportunity program; provides
advice and guidance to EPA program officials and
Regional Administrators on EEO matters; serves
as advocate for furthering career opportunities for
minorities and women; and processes complaints
of discrimination for Agency disposition. The of-
fice assures:
(1) Maximum participation of minority business
enterprises under EPA contracts and grants;
(2) Equal employment opportunity under Agen-
cy service contracts, construction contracts, and
grants;
(3) Compliance with the Davis-Bacon Act and
related acts;
(4) Compliance with the provisions of laws af-
fecting Agency programs requiring nondiscrimina-
tion on account of age and physical handicap and;
(5) Services or benefits are dispensed under any
program or activity receiving Agency financial as-
sistance on a nondiscrimination basis.
(c) Science Advisory Board. The Science Advi-
sory Board, under the direction of a Director, pro-
vides expert and independent advice to the Admin-
istrator on the scientific and technical issues facing
the Agency. The Office advises on broad, sci-
entific, technical and policy matters; assesses the
results of specific research efforts; assists in iden-
tifying emerging environmental problems; and ad-
vises the Administrator on the cohesiveness and
currency of the Agency's scientific programs.
(d) Office of Small and Disadvantaged Business
Utilization. The Office of Small and Disadvan-
taged Business Utilization, under the supervision
of a Director, is responsible for developing policy
and procedures implementing the Agency's small
and disadvantaged business utilization responsibil-
ities. The Office provides information and assist-
ance to components of the Agency's field offices
responsible for carrying out related activities. The
Office develops and implements a program to pro-
vide the maximum utilization of women-owned
business enterprises in all aspects of EPA contract
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§1.27
work; in collaboration with the Procurement and
Contracts Management Division, develops pro-
grams to stimulate and improve involvement of
small and minority business enterprises; and rec-
ommends the assignment of technical advisers to
assist designated Procurement Center Representa-
tives of the Small Business Administration in their
duties. The Office represents EPA at hearings,
interagency meetings, conferences and other ap-
propriate forums on matters related to the ad-
vancement of these cited business enterprises in
EPA's Federal Contracting Program.
(e)(l) Environmental Appeals Board. The Envi-
ronmental Appeals Board is a permanent body
with continuing functions composed of three
Board Members designated by the Administrator.
The Environmental Appeals Board shall decide
each matter before it in accordance with applicable
statutes and regulations. The Environmental Ap-
peals Board shall decide each matter by majority
vote. Two Board Members constitute a quorum,
and if the absence or recusal of a Board Member
so requires, the Board shall sit as a Board of two
Members. In the case of a tie vote, the matter
shall be referred to the Administrator to break the
tie.
(2) Functions. The Environmental Appeals
Board shall exercise any authority expressly dele-
gated to it in this title. With respect to any matter
for which authority has not been expressly dele-
gated to the Environmental Appeals Board, the
Environmental Appeals Board shall, at the Admin-
istrator's request, provide advice and consultation,
make findings of fact and conclusions of law, pre-
pare a recommended decision, or serve as the final
decisionmaker, as the Administrator deems appro-
priate. In performing its functions, the Environ-
mental Appeals Board may consult with any EPA
employee concerning any matter governed by the
rules set forth in this title, provided such consulta-
tion does not violate applicable ex parte rules in
this title.
(3) Qualifications. Each member of the Environ-
mental Appeals Board shall be a graduate of an
accredited law school and a member in good
standing of a recognized bar association of any
state or the District of Columbia. Board Members
shall not be employed by the Office of Enforce-
ment, the Office of the General Counsel, a Re-
gional Office, or any other office directly associ-
ated with matters that could come before the Envi-
ronmental Appeals Board. A Board Member shall
recuse himself or herself from deciding a particu-
lar case if that Board Member in previous employ-
ment performed prosecutorial or investigative
functions with respect to the case, participated in
the preparation or presentation of evidence in the
case, or was otherwise personally involved in the
case.
[50 FR 26721, June 28, 1985, as amended at 57 FR 5323,
Feb. 13, 1992]
§1.27 Offices of the Associate Adminis-
trators.
(a) Office of International Activities. The Office
of International Activities, under the supervision of
an Associate Administrator, provides direction to
and supervision of the activities, programs, and
staff assigned to the Office of International Activi-
ties. All of the functions and responsibilities of the
Associate Administrator are Agencywide, and
apply to all international activities of the Agency.
The Office develops policies and procedures for
the direction of the Agency's international pro-
grams and activities, subject to U.S. foreign pol-
icy, and assures that adequate program, scientific,
and legal inputs are provided. It conducts continu-
ing evaluations of the Agency's international ac-
tivities and makes appropriate recommendations to
the Administrator. The Office advises the Admin-
istrator and principal Agency officials on the
progress and effect of foreign and international
programs and issues. The Office serves as the Ad-
ministrator's representative in contacts with the
Department of State and other Federal agencies
concerned with international affairs. It negotiates
arrangements or understandings relating to inter-
national cooperation with foreign organizations.
The Office coordinates Agency international con-
tacts and commitments; serves as the focal point
for responding to requests for information relating
to EPA international activities; and provides an
initial point of contact for all foreign visitors. The
Office maintains liaison with all relevant inter-
national organizations and provides representation
where appropriate. It establishes Agency policy,
and approves annual plans and modifications for
travel abroad and attendance at international con-
ferences and events. It provides administrative
support for the general activities of the Executive
Secretary of the U.S. side of the US-USSR/PRC
agreements on environmental protection and of the
U.S. Coordinator for the NATO Committee on the
Challenges of Modern Society. The Office super-
vises these programs with respect to activities
which are completely within the purview of EPA.
(b) Office of Regional Operations. The Office of
Regional Operations, under the supervision of an
Associate Administrator, reports directly to the
Administrator and Deputy Administrator. The Of-
fice serves as the primary communications link be-
tween the Administrator/Deputy Administrator and
the Regional Administrators. It provides a Head-
quarters focus for ensuring the involvement of Re-
gions, or consideration of Regional views and
needs, in all aspects of the Agency's work. The
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§1.29
Office is responsible for assuring Regional partici-
pation in Agency decision-making processes, as-
sessing the impact of Headquarters actions on Re-
gional operations, and acting as ombudsman to re-
solve Regional problems on behalf of the Admin-
istrator. The Associate Administrator coordinates
Regional issues, organizes Regional Administrator
meetings and work groups; and coordinates Re-
gional responses to specific issues. In addition, the
Office is responsible for working with the Re-
gional Offices to further the consistent application
of national program policies by reinforcing exist-
ing administrative, procedural, and program policy
mechanisms as well as through initiation of re-
views of significant Regional issues of interest to
the Administrator. It continually monitors respon-
siveness and compliance with established policies
and technical needs through formal and informal
contact and free dialogue. The Office initiates and
conducts on-site field visits to study, analyze, and
resolve problems of Regional, sectional, and na-
tional scale.
§ 1.29 Office of Inspector General.
The Office of Inspector General assumes overall
responsibility for audits and investigations relating
to EPA programs and operations. The Office pro-
vides leadership and coordination and recommends
policies for other Agency activities designed to
promote economy and efficiency and to prevent
and detect fraud and abuse is such programs and
operations. The Office of the Inspector General in-
forms the Administrator, Deputy Administrator,
and Congress of serious problems, abuses and de-
ficiencies relating to EPA programs and oper-
ations, and of the necessity for and progress of
corrective action; and reviews existing and pro-
posed legislation and regulations to assess the im-
pact on the administration of EPA's programs and
operations. The Office recommends policies for,
and conducts or coordinates relationships between,
the Agency and other Federal, State and local gov-
ernment agencies, and nongovernmental entities on
all matters relating to the promotion of economy
and efficiency in the administration of, or the pre-
vention and detection of fraud and abuse in, pro-
grams and operations administered by the Agency.
§ 1.31 Office of General Counsel.
The Office of General Counsel is under the su-
pervision of the General Counsel who serves as
the primary legal adviser to the Administrator. The
office provides legal services to all organizational
elements of the Agency with respect to all Agency
programs and activities and also provides legal
opinions, legal counsel, and litigation support; and
assists in the formulation and administration of the
Agency's policies and programs as legal adviser.
§ 1.33 Office of Administration and Re-
sources Management.
The Office of Administration and Resources
Management is under the supervision of the As-
sistance Administrator for Administration and Re-
sources Management who provides services to all
of the programs and activities of the Agency, ex-
cept as may be specifically noted. In addition, the
Assistant Administrator has primary responsibility
Agencywide for policy and procedures governing
the functional areas outlined below. The major
functions of the Office include resources manage-
ment and systems (including budget and financial
management), personnel services, occupational
health and safety, administrative services, organi-
zation and management analysis and systems de-
velopment, information management and services,
automated data processing systems, procurement
through contracts and grants, and human resources
management. This Office is the primary point of
contact and manages Agencywide internal con-
trols, audit resolution and follow up, and govern-
ment-wide management improvement initiatives.
In the performance of the above functions and re-
sponsibilities, the Assistant Administrator for Ad-
ministration and Resources Management represents
the Administrator in communications with the Of-
fice of Management and Budget, Office of Person-
nel Management, General Accounting Office, Gen-
eral Services Administration, Department of the
Treasury, and other Federal agencies prescribing
requirements for the conduct of Government budg-
et, fiscal management and administrative activities.
(a) Office of Administration and Resources
Management, Research Triangle Park, North
Carolina, (RTF). The Office of Administration and
Resources Management (OARM), RTF, under the
supervision of a Director, provides services to all
of the programs and activities at RTF and certain
financial and automated data processing services
Agencywide. The major functions of the Office in-
clude personnel services, financial management,
procurement through contracts, library and other
information services, general services (including
safety and security, property and supply, printing,
distribution, facilities and other administrative
services) and providing both local RTF and Agen-
cywide automated data processing systems serv-
ices. The Director, OARM, RTF, supervises the
Office of Administration, Financial Management
and Data Processing, RTF.
(b) Office of Administration, Cincinnati, Ohio.
The Office of Administration at Cincinnati, Ohio,
under the supervision of a Director, provides and
administers personnel, procurement, safety and se-
curity, property and supply, printing, distribution,
facilities, and other administrative service pro-
grams at Cincinnati and other specified geographic
locations.
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§1.33
(c) Office of the Comptroller. The Office of the
Comptroller, under the supervision of the Comp-
troller, is responsible for Agencywide budget, re-
sources management and financial management
functions, including program analysis and plan-
ning; budget formulation, preparation and execu-
tion; funding allotments and allocations; and de-
veloping and maintaining accounting systems, fis-
cal controls, and systems for payroll and disburse-
ments. The Assistant Administrator's resource sys-
tems responsibilities are administered by this Of-
fice.
(d) Office of Administration. The Office of Ad-
ministration, under the supervision of a Director,
is responsible for the development and conduct of
programs for personnel policies, procedures and
operations; organization and management systems,
control, and services; facilities, property and space
management; personnel and property security;
policies, procedures, and operations related to pro-
curement through grants, contracts, and inter-
agency agreements; and occupational health and
safety.
(e) Office of Information Resources Manage-
ment. The Office of Information Resources Man-
agement (OIRM), under the supervision of a Di-
rector, provides for an information resource man-
agement program (IRM) consistent with the provi-
sions of Public Law 96-511. The Office estab-
lishes policy, goals and objectives for implementa-
tion of IRM; develops annual and long-range plans
and budgets for IRM functions and activities; and
promotes IRM concepts throughout the Agency.
The Office coordinates IRM activities; plans, de-
velops and operates information systems and serv-
ices in support of the Agency's management and
administrative functions, and other Agency pro-
grams and functions as required. The Office over-
sees the performance of these activities when car-
ried out by other Agency components. The Office
performs liaison for interagency sharing of infor-
mation and coordinates IRM activities with OMB
and GSA. The Office ensures compliance with re-
quirements of Public Law 96-511 and other Fed-
eral laws, regulations, and guidelines relative to
IRM; and chairs the Agency's IRM Steering Com-
mittee. The Office develops Agency policies and
standards; and administers or oversees Agency
programs for library systems and services, internal
records management, and the automated collection,
processing, storage, retrieval and transmission of
data by or for Agency components and programs.
The Office provides national program policy and
technical guidance for: The acquisition of all in-
formation technology, systems and services by or
for Agency components and programs, inculding
those systems and services acquired by grantees
and contractors using Agency funds; the operation
of all Agency computers and telecommunications
hardware and facilities; and the establishment and/
or application of telecommunications and Federal
information processing standards. The Office re-
views and evaluates information systems and serv-
ices, including office automation, which are oper-
ated by other Agency components; and sets stand-
ards for and approves the selection of Agency per-
sonnel who are responsible for the technical man-
agement of these activities. The Office coordinates
its performance of these functions and activities
with the Agency's information collection policies
and budgets managed by the Office of Policy,
Planning and Evaluation.
(f) The Office of Human Resources Manage-
ment. The Office of Human Resources Manage-
ment (OHRM), under the supervision of a Direc-
tor, designs strategies, plans, and policies aimedat
developing and training all employees, revitalizing
EPA organizations, and matching the right people
with the right jobs. The Office is responsible for
developing and assuring implementation of poli-
cies and practices necessary for EPA to meet its
present and future workforce needs. This includes
consideration of the interrelationships between the
environmental protection workforce needs of EPA
and State governments. For Senior Executive Serv-
ice (SES) personnel, SES candidates, Presidential
Executive Interchange Participants, and Manage-
ment Interns, OHRM establishes policies; assesses
and projects Agency executive needs and
workforce capabilities; creates, establishes, and
implements training and development strategies
and programs; provides the full range of personnel
functions; supports the Performance Review Board
(PRB) and the Executive Resources Board (ERB);
and reassigns SES personnel with the concurrence
of the ERB. For the areas of workforce manage-
ment and employee and organizational develop-
ment, OHRM develops strategies, plans, and poli-
cies; coordinates Agencywide implementation of
those strategies, plans, and policies; and provides
technical assistance to operating personnel offices
and States. OHRM, in cooperation with the Office
of the Comptroller, evaluates problems with pre-
vious workyear use, monitors current workyear
utilization, and projects future workyear needs in
coordination with the Agency's budget process.
The Office is the lead office for coordination of
human resources management with the Agency's
Strategic Planning and Management System. The
Office develops methodologies and procedures for
evaluations of Agency human resources manage-
ment activities; conducts evaluations of human re-
sources management activities Agencywide; and
carries out human resources management projects
of special interest to Agency management. The
Office coordinates its efforts with the Office of
Administration (specifically the Personnel Man-
agement Division and the Management and Orga-
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§1.35
nization Division), the Office of the Comptroller,
the Office of Information Resources Management,
and the Office of Policy, Planning and Evaluation.
§1.35 Office of Enforcement and Com-
pliance Monitoring.
The Office of Enforcement and Compliance
Monitoring, under the supervision of the Assistant
Administrator for Enforcement and Compliance
Monitoring, serves as the principal adviser to the
Administrator in matters concerning enforcement
and compliance; and provides the principal direc-
tion and review of civil enforcement activities for
air, water, waste, pesticides, toxics, and radiation.
The Assistant Administrator reviews the efforts of
each Assistant and Regional Administrator to as-
sure that EPA develops and conducts a strong and
consistent enforcement and compliance monitoring
program. The Office manages the national criminal
enforcement program; ensures coordination of
media office administrative compliance programs,
and civil and criminal enforcement activities; and
provides technical expertise for enforcement ac-
tivities.
§ 1.37 Office of External Affairs.
(a) Office of Federal Activities. The Office of
Federal Activities is headed by a Director who re-
ports to the Assistant Administrator for External
Affairs and supervises all the functions of the Of-
fice. The Director acts as national program man-
ager for five major programs that include:
(1) The review of other agency environmental
impact statements and other major actions under
the authority of Section 309 of the Clean Air Act;
(2) EPA compliance with the National Environ-
mental Policy Act (NEPA) and related laws, direc-
tives, and Executive policies concerning special
environmental areas and cultural resources;
(3) Compliance with Executive policy on Amer-
ican Indian affairs and the development of pro-
grams for environmental protection on Indian
lands; and
(4) The development and oversight of national
programs and internal policies, strategies, and pro-
cedures for implementing Executive Order 12088
and other administrative or statutory provisions
concerning compliance with environmental re-
quirements by Federal facilities. The Director
chairs the Standing Committee on Implementation
of Executive Order 12088. The Office serves as
the Environmental Protection Agency's (EPA)
principal point of contact and liaison with other
Federal agencies and provides consultation and
technical assistance to those agencies relating to
EPA's areas of expertise and responsibility. The
Office administers the filing and information sys-
tem for all Federal Environmental Impact State-
ments under agreement with the Council on Envi-
ronmental Quality (CEQ) and provides liaison
with CEQ on this function and related matters of
NEPA program administration. The Office pro-
vides a central point of information for EPA and
the public on environmental impact assessment
techniques and methodologies.
(b) Office of Public Affairs. The Office of Pub-
lic Affairs is under the supervision of a Director
who serves as chief spokesperson for the Agency
and as a principal adviser, along with the Assistant
Administrator for External Affairs, to the
Adminstrator, Deputy Administrator, and Senior
Management Officials, on public affairs aspects of
the Agency's activities and programs. The Office
of Public Affairs provides to the media adequate
and timely information as well as responses to
queries from the media on all EPA program activi-
ties. It assures that the policy of openness in all
information matters, as enunciated by the Admin-
istrator, is honored in all respects. Develops publi-
cations to inform the general public of major EPA
programs and activities; it also develops informa-
tional materials for internal EPA use in Head-
quarters and at the Regions, Labs and Field Of-
fices. It maintains clearance systems and proce-
dures for periodicals and nontechnical information
developed by EPA for public distribution, and re-
views all publications for public affairs interests.
The Office of Public Affairs provides policy direc-
tion for, and coordination and oversight of EPA's
community relations program. It provides a system
for ensuring that EPA educates citizens and re-
sponds to their concerns about all environmental
issues and assures that there are opportunities for
public involvement in the resolution of problems.
The Office supervises the production of audio-vis-
ual materials, including graphics, radio and video
materials, for the general public and for internal
audiences, in support of EPA policies and pro-
grams. The Office provides program direction and
professional review of the performance of public
affairs functions in the Regional Offices of EPA,
as well as at laboratories and other field offices.
The Office of Public Affairs is responsible for re-
viewing interagency agreements and Headquarters
purchase request requisitions expected to result in
contracts in the area of public information and
community relations. It develops proposals and re-
views Headquarters grant applications under con-
sideration when public affairs goals are involved.
(c) Office of Legislative Analysis. The Office of
Legislative Analysis, under the supervision of a
Director who serves in the capacity of Legislative
Counsel, is responsible for legislative drafting and
liaison activities relating to the Agency's pro-
grams. It exercises responsibility for legislative
drafting; reports to the Office of Management and
Budget and congressional committees on proposed
legislation and pending and enrolled bills, as re-
-------
§1.39
quired by OMB Circular No. A-19 and Bulletin
No. 72-6; provides testimony on legislation and
other matters before congressional committees;
and reviews transcripts of legislative hearings. It
maintains liaison with the Office of Congressional
Liaison on all Agency activities of interest to the
Congress. The Office works closely with the staffs
of various Assistant Administrators, Associate Ad-
ministrators, Regional Administrators, and Staff
Office Directors in accordance with established
Agency procedures, in the development of the
Agency's legislative program. The Office assists
the Assistant Administrator for External Affairs
and the Agency's senior policy officials in guiding
legislative initiatives through the legislative proc-
ess. It advises the Assistant Administrator for Ad-
ministration and Resources Management in matters
pertaining to appropriations legislation. It works
closely with the Office of Federal Activities to as-
sure compliance with Agency procedures for the
preparation of environmental impact statements, in
relation to proposed legislation and reports on leg-
islation. The Office coordinates with the Office of
Management and Budget, other agencies, and con-
gressional staff members on matters within its area
of responsibility; and develops suggested State and
local environmental legislative proposals, using in-
puts provided by other Agency components. The
Legislative Reference Library provides legislative
research services for the Agency. The Library se-
cures and furnishes congressional materials to all
EPA employees and, if available, to other Govern-
ment agencies and private organizations; and it
also provides the service of securing, upon re-
quest, EPA reports and materials for the Congress.
(d) Office of Congressional Liaison. The Office
of Congressional Liaison is under the supervision
of a Director who serves as the principal adviser
to the Administrator with respect to congressional
activities. All of the functions and responsibilities
of the Director are Agencywide and apply to the
provision of services with respect to all of the pro-
grams and activities of the Agency. The Office
serves as the principal point of congressional con-
tact with the Agency and maintains an effective li-
aison with the Congress on Agency activities of
interest to the Congress and, as necessary, main-
tains liaison with Agency Regional and field offi-
cials, other Government agencies, and public and
private groups having an interest in legislative
matters affecting the Agency. It assures the provi-
sion of prompt response to the Congress on all in-
quiries relating to activities of the Agency; and
monitors and coordinates the continuing operating
contacts between the staff of the Office of the
Comptroller and staff of the Appropriations Sub-
committees of Congress.
(e) Office of Community and Intergovernmental
Relations. The Office of Community and Intergov-
ernmental Relations is under the supervision of a
Director who serves as the principal point of con-
tact with public interest groups representing gen-
eral purpose State and local governments, and is
the principal source of advice and information for
the Administrator and the Assistant Administrator
for External Affairs on intergovernmental rela-
tions. The Office maintains liaison on intergovern-
mental issues with the White House and Office of
Management and Budget (OMB); identifies and
seeks solutions to emerging intergovernmental is-
sues; recommends and coordinates personal in-
volvement by the Administrator and Deputy Ad-
ministrator in relations with State, county, and
local government officials; coordinates and assists
Headquarters components in their handling of
broad-gauged and issue-oriented intergovernmental
problems. It works with the Regional Administra-
tors and the Office of Regional Operations to en-
courage the adoption of improved methods for
dealing effectively with State and local govern-
ments on specific EPA program initiatives; works
with the Immediate Office of the Administrator,
Office of Congressional Liaison, Office of Public
Affairs, and the Regional Offices to develop and
carry out a comprehensive liaison program; and
tracks legislative initiatives which affect the Agen-
cy's intergovernmental relations. It advises and
supports the Office Director in implementing the
President's Environmental Youth Awards program.
[50 FR 26721, June 28, 1985, as amended at 52 FR
30359, Aug. 14, 1987]
§1.39 Office of Policy, Planning and
Evaluation.
The Assistant Administrator for Policy, Plan-
ning and Evaluation services as principal adviser
to the Administrator on Agency policy and plan-
ning issues and as such is responsible for super-
vision and management of the following: Policy
analysis; standards and regulations; and manage-
ment strategy and evaluation. The Assistant Ad-
ministrator represents the Administrator with Con-
gress and the Office of Management and Budget,
and other Federal agencies prescribing require-
ments for conduct for Government management
activities.
(a) Office of Policy Analysis. The Office of Pol-
icy Analysis is under the supervision of a Director
who performs the following functions on an Agen-
cywide basis: economic analysis of Agency pro-
grams, policies, standards, and regulations, includ-
ing the estimation of abatement costs; research
into developing new benefits models; benefit-cost
analyses; impact assessments; intermediate and
long-range strategic studies; consultation and ana-
lytical assistance in the areas described above to
senior policy and program officials and other of-
fices in the Agency; development and coordination
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§1.41
proposals for major new Agency initiatives; liaison
with other agencies; universities, and interest
groups on major policy issues and development of
a coordinated Agency position; and development
of integrated pollution control strategies for se-
lected industrial and geographical areas.
(b) Office of Standards and Regulations. The
Office of Standards and Regulations is under the
supervision of a Director who is responsible for:
involving the Office of Policy, Planning and Eval-
uation (OPPE) in regulatory review; conducting
technical and statistical analyses of proposed
standards, regulations and guidelines; serving as
the Agency focal point for identifying, developing
and implementing alternatives to conventional
"command and control" regulations; conducting
analyses of Agency activities related to chemical
substances and providing mechanisms for estab-
lishing regulatory priorities and resolving scientific
issues affecting rulemaking; ensuring Agency
compliance with the Paperwork Reduction Act;
evaluating and reviewing all Agency information
collection requests and activities, and, in coopera-
tion with the Office of Administration and Re-
sources Management and the Office of Manage-
ment Systems and Evaluation, evaluating Agency
management and uses of data for decision-making.
(c) Office of Management Systems and Evalua-
tion. The Office of Management Systems and
Evaluation is under the supervision of a Director
who directs and coordinates the development, im-
plementation and administration of Agencywide
systems for planning, tracking, and evaluating the
accomplishments of Agency programs. In con-
sultation with other offices, the Office develops a
long-range policy framework for Agency goals,
and objectives, identifies strategies for achieving
goals, establishes timetables for objectives, and en-
sures that programs are evaluated against their ac-
complishments of goals.
§ 1.41 Office of Air and Radiation.
The Office of Air and Radiation is under super-
vision of the Assistant Administrator for Air and
Radiation who serves as principal adviser to the
Administrator in matters pertaining to air and radi-
ation programs, and is responsible for the manage-
ment of these EPA programs: Program policy de-
velopment and evaluation; environmental and pol-
lution sources' standards development; enforce-
ment of standards; program policy guidance and
overview, technical support or conduct of compli-
ance activities and evaluation of Regional air and
radiation program activities; development of pro-
grams for technical assistance and technology
transfer; and selected demonstration programs.
(a) Office of Mobile Sources. The Office of Mo-
bile Sources, under the supervision of a Director,
is responsible for the mobile source air pollution
control functions of the Office of Air and Radi-
ation. The Office is responsible for: Characterizing
emissions from mobile sources and related fuels;
developing programs for their control, including
assessment of the status of control technology and
in-use vehicle emissions; for carrying out, in co-
ordination with the Office of Enforcement and
Compliance Monitoring as appropriate, a regu-
latory compliance program to ensure adherence of
mobile sources to standards; and for fostering the
development of State motor vehicles emission in-
spection and maintenance programs.
(b) Office of Air Quality Planning and Stand-
ards. The Office of Air Quality Planning and
Standards, under the supervision of a Director, is
responsible for the air quality planning and stand-
ards functions of the Office of Air and Radiation.
The Director for Air Quality Planning and Stand-
ards is responsible for emission standards for new
stationary sources, and emission standards for haz-
ardous pollutants; for developing national pro-
grams, technical policies, regulations, guidelines,
and criteria for air pollution control; for assessing
the national air pollution control program and the
success in achieving air quality goals; for provid-
ing assistance to the States, industry and other or-
ganizations through personnel training activities
and technical information; for providing technical
direction and support to Regional Offices and
other organizations; for evaluating Regional pro-
grams with respect to State implementation plans
and strategies, technical assistance, and resource
requirements and allocations for air related pro-
grams; for developing and maintaining a national
air programs data system, including air quality,
emissions and other technical data; and for provid-
ing effective technology transfer through the trans-
lation of technological developments into im-
proved control program procedures.
(c) Office of Radiation Programs. The Office of
Radiation Programs, under the supervision of a Di-
rector, is responsible to the Assistant Adminis-
trator for Air and Radiation for the radiation ac-
tivities of the Agency, including development of
radiation protection criteria, standards, and poli-
cies; measurement and control of radiation expo-
sure; and research requirements for radiation pro-
grams. The Office provides technical assistance to
States through EPA Regional Offices and other
agencies having radiation protection programs; es-
tablishes and directs a national surveillance and in-
vestigation program for measuring radiation levels
in the environment; evaluates and assesses the im-
pact of radiation on the general public and the en-
vironment; and maintains liaison with other public
and private organizations involved in environ-
mental radiation protection activities. The Office
coordinates with and assists the Office of Enforce-
ment and Compliance Monitoring in enforcement
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§1.43
activities where EPA has jurisdiction. The Office
provides editorial policy and guidance, and assists
in preparing publications.
§1.43 Office of Prevention, Pesticides
and Toxic Substances.
The Assistant Administrator serves as the prin-
cipal adviser to the Administrator in matters per-
taining to assessment and regulation of pesticides
and toxic substances and is responsible for manag-
ing the Agency's pesticides and toxic substances
programs under the Federal Insecticide, Fungicide,
and Rodenticide Act (FIFRA); the Federal Food,
Drug, and Cosmetic Act; the Toxic Substances
Control Act (TSCA); and for promoting coordina-
tion of all Agency programs engaged in toxic sub-
stances activities. The Assistant Administrator has
responsibility for establishing Agency strategies
for implementation and integration of the pes-
ticides and the toxic substances programs under
applicable Federal statutes; developing and operat-
ing Agency programs and policies for assessment
and control of pesticides and toxic substances; de-
veloping recommendations for Agency priorities
for research, monitoring, regulatory, and informa-
tion-gathering activities relating to pesticides and
toxic substances; developing scientific, technical,
economic, and social data bases for the conduct of
hazard assessments and evaluations in support of
toxic substances and pesticides activities; directing
pesticides and toxic substances compliance pro-
grams; providing toxic substances and pesticides
program guidance to EPA Regional Offices; and
monitoring, evaluating, and assessing pesticides
and toxic substances program operations in EPA
Headquarters and Regional Offices.
(a) Office of Pesticide Programs. The Office of
Pesticide Programs, under the management of a
Director and Deputy Director are responsible to
the Assistant Administrator for leadership of the
overall pesticide activities of the Agency under the
authority of the Federal Insecticide, Fungicide, and
Rodenticide Act and several provisions of the Fed-
eral Food, Drug, and Cosmetic Act, including the
development of strategic plans for the control of
the national environmental pesticide situation.
Such plans are implemented by the Office of Pes-
ticide Programs, other EPA components, other
Federal agencies, or by State, local, and private
sectors. The Office is also responsible for estab-
lishment of tolerance levels for pesticide residues
which occur in or on food; registration and rereg-
istration of pesticides; special review of pesticides
suspected of posing unreasonable risks to human
health or the environment; monitoring of pesticide
residue levels in food, humans, and nontarget fish
and wildlife; preparation of pesticide registration
guidelines; development of standards for the reg-
istration and reregistration of pesticide products;
provision of program policy direction to technical
and manpower training activities in the pesticides
area; development of research needs and monitor-
ing requirements for the pesticide program and re-
lated areas; review of impact statements dealing
with pesticides; and carrying out of assigned inter-
national activities.
(b) Office of Pollution Prevention and Toxics.
The Office of Pollution Prevention and Toxics
(OPPT), under the management of a Director and
Deputy Director is responsible to the Assistant
Administrator for those activities of the Agency
mandated by the Toxic Substances Control Act.
The Director is responsible for developing and op-
erating Agency programs and policies for new and
existing chemicals. In each of these areas, the Di-
rector is responsible for information collection and
coordination; data development; health, environ-
mental and economic assessment; and negotiated
or regulatory control actions. The Director pro-
vides operational guidance to EPA Regional Of-
fices, reviews and evaluates toxic substances ac-
tivities at EPA Headquarters and Regional Offices;
coordinates TSCA activities with other EPA of-
fices and Federal and State agencies, and conducts
the export notification required by TSCA and pro-
vides information to importers. The Director is re-
sponsible for developing policies and procedures
for the coordination and integration of Agency and
Federal activities concerning toxic substances. The
Director is also responsible for coordinating com-
munication with the industrial community, envi-
ronmental groups, and other interested parties on
matters relating to the implementation of TSCA;
providing technical support to international activi-
ties managed by the Office of International Activi-
ties; and managing the joint planning of toxic re-
search and development under the auspices of the
Pesticides/Toxic Substances Research Committee.
(c) Office of Compliance Monitoring. The Of-
fice of Compliance Monitoring, under the super-
vision of a Director, plans, directs, and coordinates
the pesticides and toxic substances compliance
programs of the Agency. More specifically, the
Office provides a national pesticides and toxic
substances compliance overview and program pol-
icy direction to the Regional Offices and the
States, prepares guidance and policy on compli-
ance issues, establishes compliance priorities, pro-
vides technical support for litigation activity, con-
curs on enforcement actions, maintains liaison
with the National Enforcement Investigations Cen-
ter, develops annual fiscal budgets for the national
programs, and manages fiscal and personnel re-
sources for the Headquarters programs. The Office
directs and manages the Office of Prevention, Pes-
ticides and Toxic Substances' laboratory data in-
tegrity program which conducts laboratory inspec-
tions and audits of testing data. The Office issues
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§1.45
civil administrative complaints and other adminis-
trative orders in cases of first impression, over-
riding national significance, or violations by any
entity located in more than one Region. The office
coordinates with the Office of General Counsel
and the Office of Enforcement and Compliance
Monitoring in an attorney-client relationship, with
those Offices providing legal support for informal
and formal administrative resolutions of violations;
for conducting litigation; for interpreting statutes,
regulations and other legal precedents covering
EPA's activities; and for advising program man-
agers on the legal implications of alternative
courses of action. The Office of Compliance Mon-
itoring coordinates with the Office of Pesticide
Programs in the conduct of pesticide enforcement
compliance and registration programs under the
Federal Insecticide, Fungicide, and Rodenticide
Act and participates in decisions involving the
cancellation or suspension of registration. The Of-
fice establishes policy and operating procedures
for pesticide compliance activities including sam-
pling programs, export certification, monitoring
programs to assure compliance with experimental
use permits, pesticide use restrictions, and record-
keeping requirements, and determines when and
whether compliance actions are appropriate. The
Office establishes policy and guidance for the
State cooperative enforcement agreement program
and the applicator training and certification pro-
gram. The Office of Compliance Monitoring also
coordinates with the Office of Pollution Prevention
and Toxics in the conduct of regulatory and com-
pliance programs under the Toxic Substances Con-
trol Act and participates in regulation development
for TSCA. The Office participates in the control of
imminent hazards under TSCA, inspects facilities
subject to TSCA regulation as a part of investiga-
tions which are national in scope or which require
specialized expertise, and samples and analyzes
chemicals to determine compliance with TSCA.
The Office coordinates and provides guidance to
other TSCA compliance activities, including the
State cooperative enforcement agreement program
and the preparation of administrative suits.
[50 FR 26721, June 28, 1985, as amended at 57 FR
28087, June 24, 1992]
§1.45 Office of Research and Develop-
ment.
The Office of Research and Development is
under the supervision of the Assistant Adminis-
trator for Research and Development who serves
as the principal science adviser to the Adminis-
trator, and is responsible for the development, di-
rection, and conduct of a national research, devel-
opment and demonstration program in: Pollution
sources, fate, and health and welfare effects; pollu-
tion prevention and control, and waste manage-
ment and utilization technology; environmental
sciences; and monitoring systems. The Office par-
ticipates in the development of Agency policy,
standards, and regulations and provides for dis-
semination of scientific and technical knowledge,
including analytical methods, monitoring tech-
niques, and modeling methodologies. The Office
serves as coordinator for the Agency's policies
and programs concerning carcinogenesis and relat-
ed problems and assures appropriate quality con-
trol and standardization of analytical measurement
and monitoring techniques utilized by the Agency.
The Office exercises review and concurrence re-
sponsibilities on an Agencywide basis in all budg-
eting and planning actions involving monitoring
which require Heardquarters approval.
(a) Office of Acid Deposition, Environmental
Monitoring and Quality Assurance. The Office of
Acid Deposition, Environmental Monitoring and
Quality Assurance (OADEMQA), under the super-
vision of an Office Director, is responsible for
planning, managing and evaluating a comprehen-
sive program for:
(1) Monitoring the cause and effects of acid
deposition;
(2) Research and development on the causes, ef-
fects and corrective steps for the acid deposition
phenomenon;
(3) Research with respect to the transport and
fate of pollutants which are released into the at-
mosphere;
(4) Development and demonstration of tech-
niques and methods to measure exposure and to
relate ambient concentrations to exposure by criti-
cal receptors;
(5) Research, development and demonstration of
new monitoring methods, systems, techniques and
equipment for detection, identification and charac-
terization of pollutants at the source and in the
ambient environment and for use as reference or
standard monitoring methods;
(6) Establishment, direction and coordination of
Agencywide Quality Assurance Program; and
(7) Development and provision of quality assur-
ance methods, techniques and material including
validation and standardization of analytical meth-
ods, sampling techniques, quality control methods,
standard reference materials, and techniques for
data collection, evaluation and interpretation. The
Office identifies specific research, development,
demonstration and service needs and priorities; es-
tablishes program policies and guidelines; devel-
ops program plans including objectives and esti-
mates of resources required to accomplish objec-
tives; administers the approved program and ac-
tivities; assigns program responsibility and re-
sources to the laboratories assigned by the Assist-
ant Administrator; directs and supervises assigned
laboratories in program administration; and con-
10
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§1.45
ducts reviews of program progress and takes ac-
tion as necessary to assure timeliness, quality and
responsiveness of outputs.
(b) Office of Environmental Engineering and
Technology Demonstration. The Office of Envi-
ronmental Engineering and Technology Dem-
onstration (OEETD) under the supervision of a Di-
rector, is responsible for planning, managing, and
evaluating a comprehensive program of research,
development, and demonstration of cost effective
methods and technologies to:
(1) Control Environmental impacts associated
with the extraction, processing, conversion, and
transportation of energy, minerals, and other re-
sources, and with industrial processing and manu-
facturing facilities;
(2) Control environmental impacts of public
sector activities including publicly-owned waste
water and solid waste facilities;
(3) Control and manage hazardous waste gen-
eration, storage, treatment, and disposal;
(4) Provide innovative technologies for response
actions under Superfund and technologies for con-
trol of emergency spills of oils and hazardous
waste;
(5) Improve drinking water supply and system
operations, including improved understanding of
water supply technology and water supply criteria;
(6) Characterize, reduce, and mitigate indoor air
pollutants including radon; and
(7) Characterize, reduce, and mitigate acid rain
precursors from stationary sources. Development
of engineering data needed by the Agency in re-
viewing premanufacturing notices relative to as-
sessing potential release and exposure to chemi-
cals, treatability by waste treatment systems, con-
tainment and control of genetically engineered or-
ganisms, and development of alternatives to miti-
gate the likelihood of release and exposure to ex-
isting chemicals. In carrying out these responsibil-
ities, the Office develops program plans and man-
ages the resources assigned to it; implements the
approved programs and activities; assigns objec-
tives and resources to the OEETD laboratories;
conducts appropriate reviews to assure the quality,
timeliness, and responsiveness of outputs; and con-
ducts analyses of the relative environmental and
socioeconomic impacts of engineering methods
and control technologies and strategies. The Office
of Environmental Engineering and Technology
Demonstration is the focal point within the Office
of Research and Development for providing liai-
son with the rest of the Agency and with the De-
partment of Energy on issues associated with en-
ergy development. The Office is also the focal
point within the Office of Research and Develop-
ment for liaison with the rest of the Agency on is-
sues related to engineering reseach and develop-
ment and the control of pollution discharges.
(c) Office of Environmental Processes and Ef-
fects Research. The Office of Environmental Proc-
esses and Effects Research, under the supervision
of the Director, is responsible for planning, man-
aging, and evaluating a comprehensive research
program to develop the scientific and techno-
logical methods and data necessary to understand
ecological processes, and predict broad ecosystems
impacts, and to manage the entry, movement, and
fate of pollutants upon nonhuman organisms and
ecosystems. The comprehensive program includes:
(1) The development of organism and eco-
system level effect data needed for the establish-
ment of standards, criteria or guidelines for the
protection of nonhuman components of the envi-
ronment and ecosystems integrity and the preven-
tion of harmful human exposure to pollutants;
(2) The development of methods to determine
and predict the fate, transport, and environmental
levels which may result in human exposure and
exposure of nonhuman components of the environ-
ment, resulting from the discharge of pollutants,
singly or in combination into the environment, in-
cluding development of source criteria for protec-
tion of environmental quality;
(3) The development and demonstration of
methods for the control or management of adverse
environmental impacts from agriculture and other
rural nonprofit sources;
(4) The development and demonstration of inte-
grated pest management strategies for the manage-
ment of agriculture and urban pests which utilize
alternative biological, cultural and chemical con-
trols;
(5) The development of a laboratory and
fieldscale screening tests to provide data that can
be used to predict the behavior of pollutants in
terms of movement in the environmental, accumu-
lation in the food chain, effects on organisms, and
broad escosystem impacts;
(6) Coordination of interagency research activi-
ties associated with the health and environmental
impacts of energy production and use; and
(7) development and demonstration of methods
for restoring degraded ecosystem by means other
than source control.
(d) Office of Health Research. The Office of
Health Research under the supervision of a Direc-
tor, is responsible for the management of planning,
implementing, and evaluating a comprehensive, in-
tegrated human health research program which
documents acute and chronic adverse effects to
man from environmental exposure to pollutants
and determines those exposures which have a po-
tentially adverse effect on humans. This docu-
mentation is utilized by ORD for criteria develop-
ment and scientific assessments in support of the
Agency's regulating and standard-setting activities.
To attain this objective, the program develops tests
11
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§1.47
systems and associated methods and protocols,
such as predictive models to determine similarities
and differences among test organisms and man;
develops methodology and conducts laboratory
and field research studies; and develops inter-
agency programs which effectively use pollutants.
The Office of Health Research is the Agency's
focal point within the Office of Research and De-
velopment for providing liaison relative to human
health effects and related human exposure issues
(excluding issues related to the planning and im-
plementation of research on the human health ef-
fects of energy pollutants that is conducted under
the Interagency Energy/Environment Program). It
responds with recognized authority to changing re-
quirements of the Regions, program offices and
other offices for priority technical assistance. In
close coordination with Agency research and advi-
sory committees, other agencies and offices, and
interaction with academic and other independent
scientific bodies, the Office develops health
science policy for the Agency. Through these rela-
tionships and the scientific capabilities of its lab-
oratories and Headquarters staffs, the Office pro-
vides a focal point for matters pertaining to the ef-
fects of human exposure to environmental pollut-
ants.
(e) Office of Health and Environmental Assess-
ment (OHEA). The Office of Health and Environ-
mental Assessment, under the supervision of a Di-
rector, is the principal adviser on matters relating
to the development of health criteria, health affects
assessment and risk estimation, to the Assistant
Administrator for Research and Development. The
Director's Office: Develops recommendations on
OHEA programs including the identification and
development of alternative program goals, prior-
ities, objectives and work plans; develops rec-
ommendations on overall office policies and
means for their implementation; performs the criti-
cal path planning necessary to assure a timely pro-
duction of OHEA information in response to pro-
gram office needs; serves as an Agency health as-
sessment advocate for issue resolution and regu-
latory review in the Agency Steering Committee,
Science Advisory Board, and in cooperation with
other Federal agencies and the scientific and tech-
nical community; and provides administrative sup-
port services to the components of OHEA. The
Director's Office provides Headquarters coordina-
tion for the Environmental Criteria and Assess-
ment Offices.
(f) Office of Exploratory Research. The Office
of Exploratory Research (OER), under the super-
vision of a Director, is responsible for overall
planning, administering, managing, and evaluating
EPA's anticipatory and extramural grant research
in response to Agency priorities, as articulated by
Agency planning mechanisms and ORD's Re-
search Committees. The Director advises the As-
sistance Administrator on the direction, scientific
quality and effectiveness of ORD's long-term sci-
entific review and evaluation; and research fund-
ing assistance efforts. The responsibilities of this
office include: Administering ORD's scientific re-
view of extramural requests for research funding
assistance; developing research proposal solicita-
tions; managing grant projects; and ensuring
project quality and optimum dissemination of re-
sults. The OER is responsible for analyzing EPA's
long-range environmental research concerns; fore-
casting emerging and potential environmental
problems and manpower needs; identifying Federal
workforce training programs to be used by State
and local governments; assuring the participation
of minority institutions in environmental research
and development activities; and conducting special
studies in response to high priority national envi-
ronmental needs and problems. This office serves
as an ORD focal point for university relations and
other Federal research and development agencies
related to EPA's extramural research program.
[50 FR 26721, June 28, 1985, as amended at 52 FR
30360, Aug. 14, 1987]
§1.47 Office of Solid Waste and Emer-
gency Response.
The Office of Solid Waste and Emergency Re-
sponse (OSWER), under the supervision of the
Assistant Administrator for Solid Waste and Emer-
gency Response, provides Agencywide policy,
guidance, and direction for the Agency's solid and
hazardous wastes and emergency response pro-
grams. This Office has primary responsibility for
implementing the Resource Conservation and Re-
covery Act (RCRA) and the Comprehensive Envi-
ronmental Response, Compensation and Liability
Act (CERCLA—"Superfund"). In addition to
managing those programs, the Assistant Adminis-
trator serves as principal adviser to the Adminis-
trator in matters pertaining to them. The Assistant
Administrator's responsibilities include: Program
policy development and evaluation; development
of appropriate hazardous waste standards and reg-
ulations; ensuring compliance with applicable laws
and regulations; program policy guidance and
overview, technical support, and evaluation of Re-
gional solid and hazardous wastes and emergency
response activities; development of programs for
technical, programmatic, and compliance assist-
ance to States and local governments; development
of guidelines and standards for the land disposal
of hazardous wastes; analyses of the recovery of
useful energy from solid waste; development and
implementation of a program to respond to uncon-
trolled hazardous waste sites and spills (including
oil spills); long-term strategic planning and special
studies; economic and long-term environmental
12
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§1.49
analyses; economic impact assessment of RCRA
and CERCLA regulations; analyses of alternative
technologies and trends; and cost-benefit analyses
and development of OSWER environmental cri-
teria.
(a) Office of Waste Programs Enforcement. The
Office of Waste Programs Enforcement (OWPE),
under the supervision of a Director, manages a na-
tional program of technical compliance and en-
forcement under CERCLA and RCRA. The Office
provides guidance and support for the implementa-
tion of the CERCLA and RCRA compliance and
enforcement programs. This includes the develop-
ment of program strategies, long-term and yearly
goals, and the formulation of budgets and plans to
support implementation of strategies and goals.
The Office provides program guidance through the
development and issuance of policies, guidance
and other documents and through training and
technical assistance. The Office oversees and sup-
ports Regions and States in the implementation of
the CERCLA and RCRA enforcement programs.
The Office may assume responsibility for direct
management of a limited number of CERCLA and
RCRA enforcement actions which are multi-re-
gional in nature or are cases of national signifi-
cance. The Office serves as the national technical
expert for all matters relating to CERCLA and
RCRA compliance and enforcement. It represents
the interest of the CERCLA and RCRA enforce-
ment programs to other offices of the Agency. In
coordination with the Office of External Affairs
(OEA) and IO-OSWER, represents the program to
external organizations, including the Office of
Management and Budget (OMB), Congress, U.S.
Department of Justice and other Federal agencies,
the media, public interest and industry groups,
State and local governments and their associations
and the public.
(b) Office of Solid Waste. The Office of Solid
Waste, under the supervision of a Director, is re-
sponsible for the solid and hazardous waste activi-
ties of the Agency. In particular, this Office is re-
sponsible for implementing the Resource Con-
servation and Recovery Act. The Office provides
program policy direction to and evaluation of such
activities throughout the Agency and establishes
solid and hazardous wastes research requirements
for EPA.
(c) Office of Emergency and Remedial Re-
sponse. The Office of Emergency and Remedial
Response, under the supervision of a Director, is
responsible for the emergency and remedial re-
sponse functions of the Agency (i.e., CERCLA).
The Office is specifically responsible for:
(1) Developing national strategy, programs,
technical policies, regulations, and guidelines for
the control of abandoned hazardous waste sites,
and response to and prevention of oil and hazard-
ous substance spills;
(2) Providing direction, guidance, and support to
the Environmental Response Teams and oversee-
ing their activities;
(3) Providing direction, guidance, and support to
the Agency's non-enforcement emergency and re-
medial response programs, including emergency
and remedial responses to hazardous waste sites;
(4) Developing national accomplishment plans
and resources;
(5) Scheduling the guidelines for program plans;
(6) Assisting in the training of personnel;
(7) Monitoring and evaluating the performance,
progress, and fiscal status of the Regions in imple-
menting emergency and remedial response pro-
gram plans;
(8) Maintaining liaison with concerned public
and private national organizations for emergency
response;
(9) Supporting State emergency response pro-
grams; and
(10) Coordinating Office activities with other
EPA programs.
(d) Office of Underground Storage Tanks. The
Office of Underground Storage Tanks, under the
supervision of a Director, is responsible for defin-
ing, planning, and implementing regulation of un-
derground storage tanks containing petroleum, pe-
troleum products, and chemical products. In par-
ticular, this Office is responsible for overseeing
implementation of Subtitle I of the Resource Con-
servation and Recovery Act (RCRA), as amended.
The Office develops and promulgates regulations
and policies including notification, tank design and
installation, corrective action, and State program
approvals. It also plans for an oversees utilization
of the Underground Storage Tank Trust Fund es-
tablished by the Superfund Amendments and Re-
authorization Act of 1986 (SARA).
[50 FR 26721, June 28, 1985, as amended at 52 FR
30360, Aug. 14, 1987]
§1.49 Office of Water.
The Office of Water, under the supervision of
the Assistant Administrator for Water who serves
as the principal adviser to the Administrator in
matters pertaining to water programs, is respon-
sible for management of EPA's water programs.
Functions of the Office include program policy de-
velopment and evaluation; environmental and pol-
lution source standards development; program pol-
icy guidance and overview; technical support; and
evaluation of Regional water activities; the con-
duct of compliance and permitting activities as
they relate to drinking water and water programs;
development of programs for technical assistance
and technology transfer; development of selected
demonstration programs; economic and long-term
13
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§1.49
environmental analysis; and marine and estuarine
protection.
(a) Office of Water Enforcement and Permits.
The Office of Water Enforcement and Permits,
under the supervision of a Director, develops poli-
cies, strategies, procedures and guidance for EPA
and State compliance monitoring, evaluation, and
enforcement programs for the Clean Water Act
and the Marine Protection Research and Sanc-
tuaries Act. The Office also provides national pro-
gram direction to the National Pollutant Discharge
Elimination System permit program. The office
has overview responsibilities and provides tech-
nical assistance to the regional activities in both
enforcement and permitting programs.
(b) Office of Water Regulations and Standards.
The Office of Water Regulations and Standards,
under the supervision of a Director, is responsible
for the Agency's water regulations and standards
functions. The Office is responsible for developing
an overall program strategy for the achievement of
water pollution abatement in cooperation with
other appropriate program offices. The Office
assures the coordination of all national water-relat-
ed activities within this water program strategy,
and monitors national progress toward the achieve-
ment of water quality goals and is responsible for
the development of effluent guidelines and water
quality standards, and other pollutant standards,
regulations, and guidelines within the program re-
sponsibilities of the Office. It exercises overall re-
sponsibility for the development of effective State
and Regional water quality regulatory control pro-
grams. The Office is responsible for the develop-
ment and maintenance of a centralized water pro-
grams data system including compatible water
quality, discharger, and program data files utiliz-
ing, but not displacing, files developed and main-
tained by other program offices. It is responsible
for developing national accomplishment plans and
resource and schedule guidelines for monitoring
and evaluating the performance, progress, and fis-
cal status of the organization in implementing pro-
gram plans. The Office represents EPA in activi-
ties with other Federal agencies concerned with
water quality regulations and standards.
(c) Office of Municipal Pollution Control. The
Office of Municipal Pollution Control, under the
supervision of a Director, is responsible for the
Agency's water program operations functions. The
Office is responsible for developing national strat-
egies, program and policy recommendations, regu-
lations and guidelines for municipal water pollu-
tion control; for providing technical direction and
support to Regional Offices and other organiza-
tions; and for evaluating Regional and State pro-
grams with respect to municipal point source
abatement and control, and manpower develop-
ment for water-related activities. The Office
assures that priority Headquarters and regional ac-
tivities are planned and carried out in a coordi-
nated and integrated fashion, including developing
and implementing data submission systems.
(d) Office of Drinking Water. The Office of
Drinking Water, under the supervision of a Direc-
tor, is responsible for water supply activities of the
Agency, including the development of an imple-
mentation strategy which provides the national
policy direction and coordination for the program.
This Office develops regulations and guidelines to
protect drinking water quality and existing and fu-
ture underground sources of drinking water, devel-
ops program policy and guidance for enforcement
and compliance activities, and recommends policy
for water supply protection activities. The office
provides guidance and technical information to
State agencies, local utilities, and Federal facilities
through the Regional Offices on program planning
and phasing; evaluates the national level of com-
pliance with the regulations; plans and develops
policy guidance for response to national, Regional,
and local emergencies; reviews and evaluates, with
Regional Offices, technical data for the designa-
tion of sole-source aquifers; designs a national
program of public information; provides program
policy direction for technical assistance and man-
power training activities in the water supply area;
identifies research needs and develops monitoring
requirements for the national water supply pro-
gram; develops national accomplishments' plans
and resource schedule guidelines for monitoring
and evaluating the program plans, and program
performance, and fiscal status; develops program
plans, and budget and program status reports for
the water supply program; coordinates water sup-
ply activities with other Federal agencies as nec-
essary; and serves as liaison with the National
Drinking Water Advisory Council.
(e) Office of Ground-Water Protection. The Of-
fice of Ground-Water Protection, under the super-
vision of a Director, oversees implementation of
the Agency's Ground-water Protection Strategy.
This Office coordinates support of Headquarters
and regional activities to develop stronger State
government organizations and programs which
foster ground-water protection. The Office directs
and coordinates Agency analysis and approaches
to unaddressed problems of ground-water contami-
nation; is principally responsible for establishing
and implementing a framework for decision-mak-
ing at EPA on ground-water protection issues; and
serves as the focus of internal EPA policy coordi-
nation for ground-water.
(f) Office of Marine and Estuarine Protection.
The Office of Marine and Estuarine Protection,
under the supervision of a Director, is responsible
for the development of policies and strategies and
implementation of a program to protect the ma-
14
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rine/estuarine environment, including ocean dump-
ing. The Office provides national direction for the
Chesapeake Bay and other estuarine programs, and
policy oversight of the Great Lakes Program.
(g) Office of Wetlands Protection. The Office of
Wetlands Protection, under the supervision of a
Director, administers the 404/Wetlands Program
and develops policies, procedures, regulations, and
strategies addressing the maintenance, enhance-
ment, and protection of the Nations Wetlands. The
Office coordinates Agency issues related to wet-
lands.
[50 FR 26721, June 28, 1985, as amended at 52 FR
30360, Aug. 14, 1987]
Subpart C—Field Installations
§1.61 Regional Offices.
Regional Administrators are responsible to the
Administrator, within the boundaries of their Re-
gions, for the execution of the Regional Programs
of the Agency and such other responsibilities as
may be assigned. They serve as the Administra-
tor's prinicipal representatives in their Regions in
contacts and relationships with Federal, State,
§1.61
interstate and local agencies, industry, academic
institutions, and other public and private groups.
Regional Administrators are responsible for:
(a) Accomplishing national program objectives
within the Regions as established by the Adminis-
trator, Deputy Administrator, Assistant Adminis-
trators, Associate Administrators, and Heads of
Headquarters Staff Offices;
(b) Developing, proposing, and implementing
approved Regional programs for comprehensive
and integrated environmental protection activities;
(c) Total resource management in their Regions
within guidelines provided by Headquarters;
(d) Conducting effective Regional enforcement
and compliance programs;
(e) Translating technical program direction and
evaluation provided by the various Assistant Ad-
ministrators, Associate Administrators and Heads
of Headquarters Staff Offices, into effective oper-
ating programs at the Regional level, and assuring
that such programs are executed efficiently;
(f) Exercising approval authority for proposed
State standards and implementation plans; and
(g) Providing for overall and specific evalua-
tions of Regional programs, both internal Agency
and State activities.
15
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PART 2—PUBLIC INFORMATION
Subpart A—Requests for Information
Sec.
2.100 Definitions.
2.101 Policy on disclosure of EPA records.
2.102 [Reserved]
2.103 Partial disclosure of records.
2.104 Requests to which this subpart applies.
2.105 Existing records.
2.106 Where requests for agency records shall be filed.
2.107 Misdirected written requests; oral requests.
2.108 Form of request.
2.109 Requests which do not reasonably describe
records sought.
2.110 Responsibilities of Freedom of Information Offi-
cers.
2.111 Action by office responsible for responding to re-
quest.
2.112 Time allowed for issuance of initial determina-
tion.
2.113 Initial denials of requests.
2.114 Appeals from initial denials; manner of making.
2.115 Appeal determinations; by whom made.
2.116 Contents of determination denying appeal.
2.117 Time allowed for issuance of appeal determina-
tion.
2.118 Exemption categories.
2.119 Discretionary release of exempt documents.
2.120 Fees; payment; waiver.
2.121 Exclusions.
Subpart B—Confidentiality of Business
Information
2.201 Definitions.
2.202 Applicability of subpart; priority where provisions
conflict; records containing more than one kind of
information.
2.203 Notice to be included in EPA requests, demands,
and forms; method of asserting business confidential-
ity claim; effect of failure to assert claim at time of
submission.
2.204 Initial action by EPA office.
2.205 Final confidentiality determination by EPA legal
office.
2.206 Advance confidentiality determinations.
2.207 Class determinations.
2.208 Substantive criteria for use in confidentiality de-
terminations.
2.209 Disclosure in special circumstances.
2.210 Nondisclosure for reasons other than business
confidentiality or where disclosure is prohibited by
other statute.
2.211 Safeguarding of business information; penalty for
wrongful disclosure.
2.212 Establishment of control offices for categories of
business information.
2.213 Designation by business of addressee for notices
and inquiries.
2.214 Defense of Freedom of Information Act suits; par-
ticipation by affected business.
2.215 Confidentiality agreements.
2.216-2.300 [Reserved]
2.301 Special rules governing certain information ob-
tained under the Clean Air Act.
2.302 Special rules governing certain information ob-
tained under the Clean Water Act.
2.303 Special rules governing certain information ob-
tained under the Noise Control Act of 1972.
2.304 Special rules governing certain information ob-
tained under the Safe Drinking Water Act.
2.305 Special rules governing certain information ob-
tained under the Solid Waste Disposal Act, as
amended.
2.306 Special rules governing certain information ob-
tained under the Toxic Substances Control Act.
2.307 Special rules governing certain information ob-
tained under the Federal Insecticide, Fungicide and
Rodenticide Act.
2.308 Special rules governing certain information ob-
tained under the Federal Food, Drug and Cosmetic
Act.
2.309 Special rules governing certain information ob-
tained under the Marine Protection, Research and
Sanctuaries Act of 1972.
2.310 Special rules governing certain information ob-
tained under the Comprehensive Environmental Re-
sponse, Compensation, and Liability Act of 1980, as
amended.
2.311 Special rules governing certain information ob-
tained under the Motor Vehicle Information and Cost
Savings Act.
Subpart C—Testimony by Employees and
Production of Documents in Civil Legal
Proceedings Where the United States Is
Not a Party
2.401 Scope and purpose.
2.402 Policy on presentation of testimony and produc-
tion of documents.
2.403 Procedures when voluntary testimony is re-
quested.
2.404 Procedures when an employee is subpoenaed.
2.405 Subpoenas duces tecum.
2.406 Requests for authenticated copies of EPA docu-
ments.
AUTHORITY: 5 U.S.C. 301, 552 (as amended), 553;
sees. 114, 205, 208, 301, and 307, Clean Air Act, as
amended (42 U.S.C. 7414, 7525, 7542, 7601, 7607); sees.
308, 501 and 509(a), Clean Water Act, as amended (33
U.S.C. 1318, 1361, 1369(a)); sec. 13, Noise Control Act
of 1972 (42 U.S.C. 4912); sees. 1445 and 1450, Safe
Drinking Water Act (42 U.S.C. 300j^, 300j-9); sees.
2002, 3007, and 9005, Solid Waste Disposal Act, as
amended (42 U.S.C. 6912, 6927, 6995); sees. 8(c), 11,
and 14, Toxic Substances Control Act (15 U.S.C. 2607(c),
2610, 2613); sees. 10, 12, and 25, Federal Insecticide,
Fungicide, and Rodenticide Act, as amended (7 U.S.C.
136h, 136j, 136w); sec. 408(f), Federal Food, Drug and
Cosmetic Act, as amended (21 U.S.C. 346(fl); sees.
104(f) and 108, Marine Protection Research and Sanc-
tuaries Act of 1972 (33 U.S.C. 1414(f), 1418); sees. 104
and 115, Comprehensive Environmental Response, Com-
pensation, and Liability Act of 1980, as amended (42
U.S.C. 9604 and 9615); sec. 505, Motor Vehicle Informa-
tion and Cost Savings Act, as amended (15 U.S.C. 2005).
SOURCE: 41 FR 36902, Sept. 1, 1976, unless otherwise
noted.
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§2.100
Subpart A—Requests for
Information
§2.100 Definitions.
For the purposes of this part:
(a) EPA means the United States Environmental
Protection Agency.
(b) EPA Record or, simply record means any
document, writing, photograph, sound or magnetic
recording, drawing, or other similar thing by
which information has been preserved, from which
the information can be retrieved and copied, and
over which EPA has possession or control. It may
include copies of the records of other Federal
agencies (see §2.111(d)). The term includes infor-
mal writings (such as drafts and the like), and also
includes information preserved in a form which
must be translated or deciphered by machine in
order to be intelligible to humans. The term in-
cludes documents and the like which were created
or acquired by EPA, its predecessors, its officers,
and its employees by use of Government funds or
in the course of transacting official business. How-
ever, the term does not include materials which
are the personal records of an EPA officer or em-
ployee. Nor does the term include materials pub-
lished by non-Federal organizations which are
readily available to the public, such as books,
journals, and periodicals available through ref-
erence libraries, even if such materials are in
EPA's possession.
(c) Request means a request to inspect or obtain
a copy of one or more records.
(d) Requestor means any person who has sub-
mitted a request to EPA.
(e) The term commercial use request refers to
a request from or on behalf of one who seeks in-
formation for a use or purpose that furthers the
commercial, trade or profit interests of the reques-
tor or the person on whose behalf the request is
made. In determining whether a requestor properly
belongs in this category, EPA must determine the
use to which a requestor will put the documents
requested. Moreover, where EPA has reasonable
cause to doubt the use to which a requestor will
put the records sought, or where that use is not
clear from the request itself, EPA may seek addi-
tional clarification before assigning the request to
a specific category.
(f) The term non-commercial scientific institu-
tion refers to an institution that is not operated on
a commercial basis as that term is referenced in
paragraph (e) of this section, and which is oper-
ated solely for the purpose of conducting scientific
research the results of which are not intended to
promote any particular product or industry.
(g) The term educational institution refers to a
preschool, a public or private elementary or sec-
ondary school, an institution of graduate higher
education, an institution of undergraduate higher
education, an institution or professional education,
and an institution of vocational education, which
operates a program or programs of scholarly re-
search.
(h) The term representative of the news media
refers to any person actively gathering news for an
entity that is organized and operated to publish or
broadcast news to the public. The term news
means information that is about current events or
that would be of current interest to the public. Ex-
amples of news media entities include television
or radio stations broadcasting to the public at
large, and publishers of periodicals (but only in
those instances when they can qualify as dissemi-
nators of news) who make their products available
for purchase or subscription by the general public.
These examples are not intended to be all-inclu-
sive. Moreover, as traditional methods of news de-
livery evolve (e.g., electronic dissemination of
newspapers through telecommunications services),
such alternative media would be included in this
category. In the case of freelance journalists, they
may be regarded as working for a news organiza-
tion if they can demonstrate a solid basis for ex-
pecting publication through that organization, even
though not actually employed by it. A publication
contract would be the clearest proof, but EPA may
also look to the past publication record of a re-
questor in making this determination.
(i) The term search includes all time spent look-
ing for material that is responsive to a request, in-
cluding page-by-page or line-by-line identification
of material within documents. Searching for mate-
rial must be done in the most efficient and least
expensive manner so as to minimize costs for both
the EPA and the requestor. For example, EPA will
not engage in line-by-line search when merely du-
plicating an entire document would prove the less
expensive and quicker method of complying with
a request. Search will be distinguished, moreover,
from review of material in order to determine
whether the material is exempt from disclosure
(see paragraph (j) of this section). Searches may
be done manually or by computer using existing
programming.
(j) The term review refers to the process of ex-
amining documents located in response to a re-
quest that is for a commercial use (see paragraph
(e) of this section) to determine whether any por-
tion of any document located is permitted to be
withheld. It also includes processing any docu-
ments for disclosure, e.g., doing all that is nec-
essary to excise them and otherwise prepare them
-------
§2.106
for release. Review does not include time spent re-
solving legal or policy issues regarding the appli-
cation of exemptions. (Documents must be re-
viewed in responding to all requests; however, re-
view time may only be charged to Commercial
Use Requesters.)
(k) The term duplication refers to the process of
making a copy of a document necessary to re-
spond to an FOIA request. Such copies can take
the form of paper copy, microform, audio-visual
materials, or machine readable documentation
(e.g., magnetic tape or disk), among others. The
copy provided must be in a form that is reason-
ably usable by requesters.
[41 FR 36902, Sept. 1, 1976, as amended at 50 FR
51658, Dec. 18, 1985; 53 FR 216, Jan. 5, 1988]
§2.101 Policy on disclosure of EPA
records.
(a) EPA will make the fullest possible disclo-
sure of records to the public, consistent with the
rights of individuals to privacy, the rights of per-
sons in business information entitled to confiden-
tial treatment, and the need for EPA to promote
frank internal policy deliberations and to pursue its
official activities without undue disruption.
(b) All EPA records shall be available to the
public unless they are exempt from the disclosure
requirements of 5 U.S.C 552.
(c) All nonexempt EPA records shall be avail-
able to the public upon request regardless of
whether any justification or need for such records
has been shown by the requestor.
(d) When documents responsive to a request are
maintained for distribution by agencies operating
statutory-based fee schedule programs, such as,
but not limited to, the Government Printing Office
or the National Technical Information Service,
EPA will inform the requester of the steps nec-
essary to obtain records from the sources.
[41 FR 36902, Sept. 1, 1976, as amended at 53 FR 216,
Jan. 5, 1988]
§2.102 [Reserved]
§2.103 Partial disclosure of records.
If a requested record contains both exempt and
nonexempt material, the nonexempt material shall
be disclosed, after the exempt material has been
deleted in accordance with §2.119.
§2.104 Requests to which this subpart
applies.
(a) This subpart applies to any written request
(other than a request made by another Federal
agency) received by any EPA office, whether or
not the request cites the Freedom of Information
Act, 5 U.S.C. 552. See §§2.107(a) and 2.112(b)
regarding the treatment of requests which are di-
rected by the requestor to offices other than those
listed in §2.106.
(b) Any written request to EPA for existing
records prepared by EPA for routine public dis-
tribution, e.g., pamphlets, copies of speeches, press
releases, and educational materials, shall be hon-
ored. No individual determination under §2.111 is
necessary in such cases, since preparation of the
records for routine public distribution itself con-
stitutes a determination that the records are avail-
able to the public.
§2.105 Existing records.
(a) The Freedom of Information Act, 5 U.S.C.
552, does not require the creation of new records
in response to a request, nor does it require EPA
to place a requestor's name on a distribution list
for automatic receipt of certain kinds of records as
they come into existence. The Act establishes re-
quirements for disclosure of existing records.
(b) All existing EPA records are subject to rou-
tine destruction according to standard record reten-
tion schedules.
§2.106 Where requests
records shall be filed.
for agency
(a) A request for records may be filed with the
EPA Freedom of Information Officer, A-101, 401
M Street, SW., Washington, DC 20460.
(b) Should the requestor have reason to believe
that the records sought may be located in an EPA
regional office, he may transmit his request to the
appropriate regional Freedom of Information Of-
fice indicated below:
(1) Region I (Massachusetts, Connecticut,
Maine, New Hampshire, Rhode Island, Vermont):
U.S. Environmental Protection Agency, Freedom of Infor-
mation Officer, Room 2303, John F. Kennedy Federal
Building, Boston, MA 02203.
(2) Region II (New Jersey, New York, Puerto
Rico, Virgin Islands):
U.S. Environmental Protection Agency, Freedom of Infor-
mation Officer, Room 1005, 26 Federal Plaza, New
York, NY 10007.
(3) Region III (Delaware, Maryland, Pennsylva-
nia, Virginia, West Virginia, District of Colum-
bia):
U.S. Environmental Protection Agency, Freedom of Infor-
mation Officer, 841 Chestnut Street, Philadelphia, PA
19107.
(4) Region IV (Alabama, Florida, Georgia, Ken-
tucky, Mississippi, North Carolina, South Carolina,
Tennessee):
U.S. Environmental Protection Agency, Freedom of Infor-
mation Officer, 345 Courtland Street, NE., Atlanta, GA
30365.
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§2.107
(5) Region V (Illinois, Indiana, Michigan, Min-
nesota, Ohio, Wisconsin):
U.S. Environmental Protection Agency, Freedom of Infor-
mation Officer, 77 West Jackson Boulevard, Chicago,
IL 60604.
(6) Region VI (Arkansas, Louisiana, New Mex-
ico, Oklahoma, Texas):
U.S. Environmental Protection Agency, Freedom of Infor-
mation Officer (6M-MC), 1201 Elm Street, Dallas, TX
75270.
(7) Region VII (Iowa, Kansas, Missouri, Ne-
braska):
U.S. Environmental Protection Agency, Freedom of Infor-
mation Officer, 726 Minnesota Avenue, Kansas City,
KS 66101.
(8) Region VIII (Colorado, Montana, North Da-
kota, South Dakota, Utah, Wyoming):
U.S. Environmental Protection Agency, Freedom of Infor-
mation Officer, One Denver Place, 999 18th Street,
Suite 1300, Denver, CO 80202-2413.
(9) Region IX (Arizona, California, Hawaii, Ne-
vada, American Samoa, Guam, Trust Territory of
Pacific Islands):
U.S. Environmental Protection Agency, Freedom of Infor-
mation Officer, 215 Fremont Street, San Francisco, CA
94105.
(10) Region X (Alaska, Idaho, Oregon, Wash-
ington):
U.S. Environmental Protection Agency, Freedom of Infor-
mation Officer, 1200 Sixth Avenue, Seattle, WA
98101.
[41 FR 36902, Sept. 1, 1976, as amended at 50 FR
51659, Dec. 18, 1985; 62 FR 1833, Jan. 14, 1997]
§2.107 Misdirected written requests;
oral requests.
(a) EPA cannot assure that a timely or satisfac-
tory response under this subpart will be given to
written requests that are addressed to EPA offices,
officers, or employees other than the Freedom of
Information Officers listed in §2.106. Any EPA
officer or employee who receives a written request
for inspection or disclosure of EPA records shall
promptly forward a copy of the request to the ap-
propriate Freedom of Information Officer, by the
fastest practicable means, and shall, if appropriate,
commence action under §2.111. For purposes of
§2.112, the time allowed with respect to initial de-
terminations shall be computed from the day on
which the appropriate Freedom of Information Of-
ficer receives the request.
(b) While EPA officers and employees will at-
tempt in good faith to comply with requests for in-
spection or disclosure of EPA records made orally,
by telephone or otherwise, such oral requests are
not required to be processed in accordance with
this subpart.
[41 FR 36902, Sept. 1, 1976, as amended at 50 FR
51659, Dec. 18, 1985]
§ 2.108 Form of request.
A request shall be made in writing, shall reason-
ably describe the records sought in a way that will
permit their identification and location, and should
be addressed to one of the addresses set forth in
§2.106, but otherwise need not be in any particu-
lar form.
§2.109 Requests which do not reason-
ably describe records sought.
(a) If the description of the records sought in
the request is not sufficient to allow EPA to iden-
tify and locate the requested records, the EPA of-
fice taking action under §2.111 will notify the re-
questor (by telephone when practicable) that the
request cannot be further processed until additional
information is furnished.
(b) EPA will make every reasonable effort to
assist in the identification and description of
records sought and to assist the requestor in for-
mulating his request. If a request is described in
general terms (e.g., all records having to do with
a certain area), the EPA office taking action under
§2.111 may communicate with the requestor (by
telephone when practicable) with a view toward
reducing the administrative burden of processing a
broad request and minimizing the fees payable by
the requestor. Such attempts will not be used as a
means to discourage requests, but rather as a
means to help identify with more specificity the
records actually sought.
§2.110 Responsibilities of Freedom of
Information Officers.
(a) Upon receipt of a written request, the Free-
dom of information Officer (whether at EPA
Headquarters or at an EPA region) shall mark the
request with the date of receipt, and shall attach
to the request a control slip indicating the date of
receipt, the date by which response is due, a
unique Request Identification Number, and other
pertinent administrative information. The request
and control slip shall then be forwarded imme-
diately to the EPA office believed to be respon-
sible for maintaining the records requested. (If the
records requested are believed to be located at two
or more EPA offices, each such office shall be
furnished a copy of the request and control slip,
with instructions concerning which office shall
serve as the lead office for coordinating the re-
sponse.) The Freedom of Information Officer shall
retain a file copy of the request and control slip,
and shall monitor the handling of the request to
ensure a timely response.
-------
§2.112
(b) The Freedom of Information Officer shall
maintain a file concerning each request received,
which shall contain a copy of the request, initial
and appeal determinations, and other pertinent cor-
respondence and records.
(c) The Freedom of Information officer shall
collect and maintain the information necessary to
compile the reports required by 5 U.S.C. 552(d).
§2.111 Action by office responsible for
responding to request.
(a) Whenever an EPA office becomes aware
that it is responsible for responding to a request,
the office shall:
(1) Take action under §2.109, if required, to ob-
tain a better description of the records requested;
(2) Locate the records as promptly as possible,
or determine that the records are not known to
exist, or that they are located at another EPA of-
fice, or that they are located at another Federal
agency and not possessed by EPA;
(3) When appropriate, take action under
§2.120(c) to obtain payment or assurance of pay-
ment;
(4) If any located records contain business in-
formation, as defined in §2.201(c), comply with
subpart B of this part;
(5) Determine which of the requested records
legally must be withheld, and why (see
§2.119(b));
(6) Of the requested records which are exempt
from mandatory disclosure but which legally may
be disclosed (see §2.119(a)), determine which
records will be withheld, and why;
(7) Issue all initial determination within the al-
lowed period (see §2.112), specifying (individ-
ually or by category) which records will be dis-
closed and which will be withheld, and signed by
a person authorized to issue the determination
under §2.113(b). Denials of requests shall comply
with §2.113; and
(8) Furnish the appropriate Freedom of Informa-
tion Officer a copy of the determination. If the de-
termination denied a request for one or more exist-
ing, located records, the responding office shall
also furnish the Freedom of Information officer
the name, address, and telephone number of the
EPA employee(s) having custody of the records,
and shall maintain the records in a manner permit-
ting their prompt forwarding to the General Coun-
sel upon request if an appeal from the initial de-
nial is filed. See also §2.204(f).
(b) If it appears that some or all of the re-
quested records are not in the possession of the
EPA office which has been assigned responsibility
for responding to the request but may be in the
possession of some other EPA office, the Freedom
of Information officer who is monitoring the re-
quest shall be so informed immediately.
(c) In determining which records are responsive
to a request, the EPA office responding shall ordi-
narily include those records within the Agency's
possession as of the date of the Agency's receipt
of the request.
(d) When a request for EPA records encom-
passes records of another Federal agency, the EPA
office shall either: (1) Respond to the request after
consulting with the originating agency when ap-
propriate or; (2) promptly transfer responsibility
for responding to the request to the originating
agency provided that the other agency is subject to
the FOIA. Whenever the EPA office refers a re-
quest to another agency, it shall notify the reques-
tor of the referral.
[41 FR 36902, Sept. 1, 1976, as amended at 50 FR
51659, Dec. 18, 1985]
§2.112 Time allowed for issuance of
initial determination.
(a) Except as otherwise provided in this section,
not later than the tenth working day after the date
of receipt by a Freedom of Information Office of
a request for records, the EPA office responsible
for responding to the request shall issue a written
determination to the requestor stating which of the
requested records will, and which will not, be re-
leased and the reason for any denial of a request.
If the records are not known to exist or are not in
EPA's possession, the EPA office shall so inform
the requestor. To the extent requested records
which are in EPA's possession are published by
the Federal government, the response may inform
the requestor that the records are available for in-
spection and where copies can be obtained.
(b) The period of 10 working days shall be
measured from the date the request is first re-
ceived and logged in by the Headquarters or re-
gional Freedom of Information Office.
(c) There shall be excluded from the period of
10 working days (or any extension thereof) any
time which elapses between the date that a reques-
tor is notified by EPA under §2.109 that his re-
quest does not reasonably identify the records
sought, and the date that the requestor furnishes a
reasonable identification.
(d) There shall be excluded from the period of
10 working days (or any extension thereof) any
time which elapses between the date that a reques-
tor is notified by EPA under §2.120 that prepay-
ment or assurance of payment of fees is required,
and the date that the requestor pays (or makes
suitable arrangements to pay) such charges.
(e) The EPA office taking action under §2.111,
after notifying the appropriate Freedom of Infor-
mation Office, may extend the basic 10-day period
established under subsection (a) of this section by
a period not to exceed 10 additional working days,
by furnishing written notice to the requestor within
-------
§2.113
the basic 10-day period stating the reasons for
such extension and the date by which the office
expects to be able to issue a determination. The
period may be so extended only when absolutely
necessary, only for the period required, and only
when one or more of the following unusual cir-
cumstances require the extension:
(1) There is a need to search for and collect the
requested records from field facilities or other es-
tablishments that are separate from the office proc-
essing the request:
(2) There is a need to search for, collect, and
appropriately examine a voluminous amount of
separate and distinct records which are demanded
in a single request; or
(3) There is a need for consultation, which shall
be conducted with all practicable speed, with an-
other agency having a substantial interest in the
determination of the request or among two or
more components of EPA.
(f) Failure of EPA to issue a determination
within the 10-day period or any authorized exten-
sion shall constitute final agency action which au-
thorizes the requestor to commence an action in an
appropriate Federal district court to obtain the
records.
[41 FR 36902, Sept. 1, 1976, as amended at 50 FR
51659, Dec. 18, 1985]
§2.113 Initial denials of requests.
(a) An initial denial of a request may be issued
only for the following reasons:
(1) A statutory provision, provision of this part,
or court order requires that the information not be
disclosed;
(2) The record is exempt from mandatory dis-
closure under 5 U.S.C. 552(b) and EPA has de-
cided that the public interest would not be served
by disclosure; or
(3) Section 2.204(d)(l) requires initial denial be-
cause a third person must be consulted in connec-
tion with a business confidentiality claim.
(b) The Deputy Administrator, Assistant Admin-
istrators, Regional Administrators, the General
Counsel, the Inspector General, Associate Admin-
istrators, and heads of headquarters staff offices
are delegated the authority to issue initial deter-
minations This authority may be redelegated; Pro-
vided, That the authority to issue initial denials of
requests for existing, located records (other than
denials based solely on §2.204(d)(l)) may be re-
delegated only to persons occupying positions not
lower than division director or equivalent.
(c) [Reserved]
(d)(l) Each initial determination to deny a re-
quest shall be written, signed, and dated, and, ex-
cept as provided in paragraph (d)(2), shall contain
a reference to the Request Identification Number,
shall identify the records that are being withheld
(individually, or, if the denial covers a large num-
ber of similar records, by described category), and
shall state the basis for denial for each record or
category of records being withheld.
(2) No initial determination shall reveal the ex-
istence or nonexistence of records if identifying
the mere fact of the existence or nonexistence of
those records would reveal confidential business
information, confidential personal information or
classified national security information. Instead of
identifying the existence or nonexistence of the
records, the initial determination shall state that
the request is denied because either the records do
not exist or they are exempt from mandatory dis-
closure under the applicable provision of 5 U.S.C.
552(b). No such determination shall be made with-
out the concurrence of the General Counsel or his
designee. The General Counsel has designated the
Contracts and Information Law Branch to act on
these requests for concurrence. See §2.121 for
guidance on initial determinations denying, in lim-
ited circumstances, the existence of certain law en-
forcement records or information.
(e) If the decision to deny a request is made by
an authorized EPA employee other than the person
signing the determination letter, that other person's
identity and position shall be stated in the deter-
mination letter.
(f) Each initial determination which denies, in
whole or in part, a request for one or more exist-
ing, located EPA records (including determinations
described in §2.113(d)(2) of this section) shall
state that the requester may appeal the initial de-
nial by sending a written appeal to the address
shown in §2.106(a) within 30 days after receipt of
the determination. An initial determination which
only denies the existence of records, however, will
not include a notice of appeal rights.
(g) A determination shall be deemed issued on
the date the determination letter is placed in EPA
mailing channels for first class mailing to the re-
questor, delivered to the U.S. Postal Service for
mailing, or personally delivered to the requestor,
whichever date first occurs.
[41 FR 36902, Sept. 1, 1976, as amended at 50 FR
51659, Dec. 18, 1985; 53 FR 216, Jan. 5, 1988]
§2.114 Appeals from initial denials;
manner of making.
(a) Any person whose request for one or more
existing, located EPA records has been denied in
whole or in part by an initial determination may
appeal that denial by addressing a written appeal
to the address shown in § 2.106(a).
(b) An appeal should be mailed no later than 30
calendar days after the date the requestor received
-------
§2.117
the initial determination on the request. An un-
timely appeal may be treated either as a timely ap-
peal or as a new request, at the option of the Free-
dom of Information Officer.
(c) The appeal letter shall contain a reference to
the Request Identification Number (RIN), the date
of the initial determination, and the name and ad-
dress of the person who issued the initial denial.
The appeal letter shall also indicate which of the
records to which access was denied are the sub-
jects of the appeal.
[41 FR 36902, Sept. 1, 1976, as amended at 50 FR
51659, Dec. 18, 19851
§2.115 Appeal
whom made.
determinations; by
(a) The General Counsel shall make one of the
following legal determinations in connection with
every appeal from the initial denial of a request
for an existing, located record:
(1) The record must be disclosed;
(2) The record must not be disclosed, because
a statute or a provision of this part so requires; or
(3) The record is exempt from mandatory dis-
closure but legally may be disclosed as a matter
of Agency discretion.
(b) Whenever the General Counsel has deter-
mined under paragraph (a)(3) of this section that
a record is exempt from mandatory disclosure but
legally may be disclosed, and the record has not
been disclosed by EPA under 5 U.S.C. 552, the
matter shall be referred to the Assistant Adminis-
trator for External Affairs. If the Assistant
Administant Administrator determines that the
public interest would not be served by disclosure,
a determination denying the appeal shall be issued
by the General Counsel. If the Assistant Adminis-
trator determines that the public interest would be
served by disclosure, the record shall be disclosed
unless the Administrator (upon a review of the
matter requested by the appropriate Assistant Ad-
ministrator, Associate Administrator, Regional Ad-
ministrator, the General Counsel, or the head of a
headquarters staff office) determines that the pub-
lic interest would not be served by disclosure, in
which case the General Counsel shall issue a de-
termination denying the appeal. This review by the
Assistant Administrator for External Affairs shall
not apply to appeals from initial determinations by
the Office of Inspector General to deny requests.
(c) The General Counsel may delegate his au-
thority under paragraph (a) of this section to a Re-
gional Counsel, or to any other attorney employed
on a full-time basis by EPA, in connection with
any category of appeals or any individual appeal.
(d) The Assistant Administrator for External Af-
fairs may delegate the authority under paragraph
(b) of this section to the Deputy Assistant Admin-
istrator for External Affairs.
[41 FR 36902, Sept. 1, 1976, as amended at 50 FR
51659, Dec. 18, 1985]
§2.116 Contents of determination de-
nying appeal.
(a) Except as provided in paragraph (b) of this
section, each determination denying an appeal
from an initial denial shall be in writing, shall
state which of the exemptions in 5 U.S.C. 552(b)
apply to each requested existing record, and shall
state the reason(s) for denial of the appeal. A de-
nial determination shall also state the name and
position of each EPA officer or employee who di-
rected that the appeal be denied. Such a deter-
mination shall further state that the person whose
request was denied may obtain de novo judicial
review of the denial by complaint filed with the
district court of the United States in the district in
which the complainant resides, or has his principal
place of business, or in which the Agency records
are situated, or in the District of Columbia, pursu-
ant to 5 U.S.C. 552(a)(4).
(b) No determination denying an appeal shall
reveal the existence or nonexistence of records if
identifying the mere fact of the existence or non-
existence of those records would reveal confiden-
tial business information, confidential personal in-
formation or classified national security informa-
tion. Instead of identifying the existence or non-
existence of the records, the determination shall
state that the appeal is denied because either the
records do not exist or they are exempt from man-
datory disclosure under the applicable provision of
5 U.S.C. 552(b).
[53 FR217, Jan. 5, 1988]
§2.117 Time allowed for issuance of
appeal determination.
(a) Except as otherwise provided in this section,
not later than the twentieth working day after the
date of receipt by the Freedom of Information Of-
ficer at EPA Headquarters of an appeal from an
initial denial of a request for records, the General
Counsel shall issue a written determination stating
which of the requested records (as to which an ap-
peal was made) shall be disclosed and which shall
not be disclosed.
(b) The period of 20 working days shall be
measured from the date an appeal is first received
by the Freedom of Information Officer at EPA
Headquarters, except as otherwise provided in
§2.205(a).
(c) The Office of General Counsel, after notify-
ing the Freedom of Information Officer at EPA
Headquarters, may extend the basic 20-day period
established under subsection (a) of this section by
-------
§2.118
a period not to exceed 10 additional working days,
by furnishing written notice to the requestor within
the basic 20-day period stating the reasons for
such extension and the date by which the office
expects to be able to issue a determination. The
period may be so extended only when absolutely
necessary, only for the period required, and only
when one or more of the following unusual cir-
cumstances require the extension:
(1) There is a need to search for and collect the
records from field facilities or other establishments
that are separate from the office processing the ap-
peal;
(2) There is a need to search for, collect, and
appropriately examine a voluminous amount of
separate and distinct records which are demanded
in a single request; or
(3) There is a need for consultation, which shall
be conducted with all practicable speed, with an-
other agency having a substantial interest in the
determination of the request or among two or
more components of EPA.
(d) No extension of the 20-day period shall be
issued under subsection (c) of this section which
would cause the total of all such extensions and
of any extensions issued under §2.112(e) to ex-
ceed 10 working days.
§2.118 Exemption categories.
(a) 5 U.S.C. 552(b) establishes nine exclusive
categories of matters which are exempt from the
mandatory disclosure requirements of 5 U.S.C.
552(a). No request under 5 U.S.C. 552 for an ex-
isting, located record in EPA's possession shall be
denied by any EPA office or employee unless the
record contains (or its disclosure would reveal)
matters that are—
(1) Specifically authorized under criteria estab-
lished by an Executive Order to be kept secret in
the interest of national defense or foreign policy
and are in fact properly classified pursuant to such
Executive Order;
(2) Related solely to the internal personnel rules
and practices of an agency;
(3) Specifically exempted from disclosure by
statute (other than 5 U.S.C. 552(b)): Provided,
That such statute:
(i) Requires that the matters be withheld from
the public in such a manner as to leave no discre-
tion on the issue, or
(ii) Establishes particular criteria for withhold-
ing or refers to particular types of matters to be
withheld;
(4) Trade secrets and commercial or financial
information obtained from a person and privileged
or confidential (see subpart B);
(5) Interagency or intra-agency memorandums
or letters which would not be available by law to
a party other than an agency in litigation with the
agency;
(6) Personnel and medical files and similar files
the disclosure of which would constitute a clearly
unwarranted invasion of personal privacy;
(7)(i) Records or information compiled for law
enforcement purposes, but only to the extent that
the production of such law enforcement records or
information:
(A) Could reasonably be expected to interfere
with enforcement proceedings;
(B) Would deprive a person of a right to a fair
trial or an impartial adjudication;
(C) Could reasonably be expected to constitute
an unwarranted invasion of personal privacy;
(D) Could reasonably be expected to disclose
the identity of a confidential source, including a
State, local, or foreign agency or authority or any
private institution which furnished information on
a confidential basis, and, in the case of a record
or information compiled by a criminal law en-
forcement authority in the course of a criminal in-
vestigation, or by an agency conducting a lawful
national security intelligence investigation, infor-
mation furnished by a confidential source;
(E) Would disclose techniques and procedures
for law enforcement investigations or prosecutions,
or would disclose guidelines for law enforcement
investigations or prosecutions if such disclosure
could reasonably be expected to risk circumven-
tion of the law; or
(F) Could reasonably be expected to endanger
the life or physical safety of any individual.
(ii) [Reserved]
(8) Contained in or related to examination, oper-
ating, or condition reports prepared by, on behalf
of, or for the use of an agency responsible for the
regulation or supervision of finanical institutions;
or
(9) Geological and geophysical information and
data, including maps, concerning wells.
(b) The fact that the applicability of an exemp-
tion permits the withholding of a requested record
(or portion thereof) does not necessarily mean that
the record must or should be withheld. See
§2.119.
[41 FR 36902, Sept. 1, 1976, as amended at 43 FR
40000, Sept. 8, 1978; 53 FR 217, Jan. 5, 1988]
§2.119 Discretionary release of exempt
documents.
(a) An EPA office may, in its discretion, release
requested records despite the applicability of one
or more of the exemptions listed in §2.118 (a)(2),
(a)(5), or (a)(7). Disclosure of such records is en-
couraged if no important purpose would be served
by withholding the records.
(b) As a matter of policy, EPA will not release
a requested record if EPA has determined that one
-------
§2.120
or more of the exemptions listed in §2.118(a)(l),
(3), (4), (6), (8), or (9), applies to the record, ex-
cept when ordered to do so by a Federal court or
in exceptional circumstances under appropriate re-
strictions with the approval of the Office of Gen-
eral Counsel or a Regional Counsel.
§2.120 Fees; payment; waiver.
(a) Fee schedule. Requesters shall be charged
the full allowable direct costs incurred by the
Agency in responding to a FOIA request. How-
ever, if EPA uses a contractor to search for, repro-
duce or disseminate records responsive to a re-
quest, the cost to the requester shall not exceed the
cost of the Agency itself performing the service.
(1) There are four categories of requests. Fees
for each of the categories will be charged as fol-
lows:
(i) Commercial use requests. If the request seeks
disclosure of records for a commercial use, the re-
quester shall be charged for the time spent search-
ing for the requested record, reviewing the record
to determine whether it should be disclosed and
for the cost of each page of duplication. Commer-
cial use requesters should note that EPA also may
charge fees to them for time spent searching for
and/or reviewing records, even if EPA fails to lo-
cate the records or if the records located are deter-
mined to be exempt from disclosure.
(ii) Requests from an educational or non-com-
mercial scientific institution whose purpose is
scholarly or scientific research, involving a request
which is not for a commercial use and seeks dis-
closure of records. In the case of such a request,
the requester shall be charged only for the duplica-
tion cost of the records, except that the first 100
pages of duplication shall be furnished without
charge.
(iii) Requests from a representative of the news
media, involving a request which is not for a com-
mercial use and seeks disclosure of records. In the
case of such a request, the requester shall be
charged only for the duplication cost of the
records, except that the first 100 pages of duplica-
tion shall be furnished without charge.
(iv) All other requests. If the request seeks dis-
closure of records other than as described in para-
graphs (a)(l)(i), (ii), and (iii) of this section, the
requester shall be charged the full cost of search
and duplication. However, the first two hours of
search time (or its cost equivalent) and the first
100 pages of duplication (or their cost equivalent)
shall be furnished without charge. Requesters in
the "all other requests" category should note that
EPA also may charge fees to them for time spent
searching for records, even if EPA fails to locate
the records or if the records located are deter-
mined to be exempt from disclosure.
(2) The determination of a requester's fee cat-
egory will be based on the following:
(i) Commercial use requesters: The use to which
the requester will put the documents requested;
(ii) Educational and non-commercial scientific
institution requestors: Identity of the requester and
the use to which the requestor will put the docu-
ments requested;
(iii) Representatives of the news media request-
ers: The identity of the requester and the use to
which the requestor will put the documents re-
quested.
(3) Fees will be charged to requesters, as appro-
priate, for search, duplication and review of re-
quested records in accordance with the following
schedule:
(i) Manual search for records.
(A) EPA Employees: For each Vi hour or por-
tion thereof:
(7) GS-8 and below: $4.00.
(2) GS-9 and above: $10.00.
(B) Contractor employees: The requestor will be
charged for actual charges up to but not exceeding
the rate which would have been charged had EPA
employees conducted the search.
(ii) Computer search for records charges will
consist of:
(A) EPA employee operators: For each V-2 hour
or portion thereof:
(7) GS-8 and below: $4.00.
(2) GS-9 and above: $10.00, plus.
(B) Contractor operators: Requestors will be
charged for the actual charges up to but not ex-
ceeding the rate which would have been charged
had EPA employees conducted the search (see
paragraph (a)(3)(i)(A) of this section), plus.
(C) Actual computer resource usage charges for
this search.
(iii) Review of records. For each Vz hour or
portion thereof (EPA employees):
(A) GS-8 and below: $4.00.
(B) GS-9 and above: $10.00.
(iv) Duplication or reproduction of records.
(A) Duplication or reproduction of documents
by EPA employees (paper copy of paper original):
$.15 per page.
(B) Computer printouts (other than those cal-
culated in a direct-cost billing—see paragraph
(a)(3)(ii) of this section "Computer search for
records") $.15 per page.
(C) Other methods of duplication or reproduc-
tion, including, but not limited to, duplication of
photographs, microfilm and magnetic tape, will be
charged at the actual direct cost to EPA.
(4) Other charges.
(i) Other charges incurred in responding to a re-
quest including but not limited to, special handling
or transportation of records, will be charged at the
actual direct cost to EPA.
-------
§2.120
(ii) Certification or authentication of records:
$25.00 per certification or authentication.
(5) No charge shall be made—
(i) For the cost of preparing or reviewing letters
of response to a request or appeal;
(ii) For time spent resolving legal or policy is-
sues concerning the application of exemptions;
(iii) For search time and the first 100 pages of
duplication for requests described in
§2.120(a)(l)(ii) and (iii) of this section;
(iv) For the first two hours of search time (or
its cost equivalent) and for the first 100 pages of
duplication for requests described in
§2.120(a)(l)(iv) of this section;
(v) If the total fee in connection with a request
is less than $25.00, or if the costs of collecting the
fee would otherwise exceed the amount of the fee.
However, when EPA reasonably believes that a re-
quester or group of requesters is attempting to
break a request down into a series of requests for
the purpose of avoiding the assessment of fees,
EPA will aggregate such requests to determine the
total fee, and will charge accordingly;
(vi) For responding to a request by an individ-
ual for one copy of a record retrievable by the re-
questing individual's name or personal identifier
from a Privacy Act system of records;
(vii) For furnishing records requested by either
House of Congress, or by a duly authorized com-
mittee or subcommittee of Congress, unless the
records are requested for the benefit of an individ-
ual Member of Congress or for a constituent;
(viii) For furnishing records requested by and
for the official use of other Federal agencies; or
(ix) For furnishing records needed by an EPA
contractor, subcontractor, or grantee to perform the
work required by the EPA contract or grant.
(b) Method of payment. All fee payments shall
be in the form of a check or money order payable
to the "U.S. Environmental Protection Agency"
and shall be sent (accompanied by a reference to
the pertinent Request Identification Number(s)) to
the appropriate Headquarters or Regional Office
lock box address:
(1) EPA—Washington Headquarters, P.O. Box
360277M, Pittsburgh, PA 15251;
(2) EPA—Region 1, P.O. Box 360197M, Pitts-
burgh, PA 15251;
(3) EPA—Region 2, P.O. Box 360188M, Pitts-
burgh, PA 15251;
(4) EPA—Region 3, P.O. Box 360515M, Pitts-
burgh, PA 15251;
(5) EPA—Region 4, P.O. Box 100142, Atlanta,
GA. 30384;
(6) EPA—Region 5, P.O. Box 70753, Chicago,
IL 60673;
(7) EPA—Region 6, P.O. Box 360582M, Pitts-
burgh, PA 15251;
(8) EPA—Region 7, P.O. Box 360748M, Pitts-
burgh, PA 15251;
(9) EPA—Region 8, P.O. Box 360859M, Pitts-
burgh, PA 15251;
(10) EPA—Region 9, P.O. Box 360863M, Pitts-
burgh, PA 15251;
(11) EPA—Region 10, P.O. Box 360903M,
Pittsburgh, PA 15251;
Under the Debt Collection Act of 1982 (Pub. L.
97-365), payment (except for prepayment) shall be
due within thirty (30) calendar days after the date
of billing. If payment is not received at the end of
thirty calendar days, interest and a late payment
handling charge will be assessed. In addition,
under this Act, a penalty charge will be applied on
any principal amount not paid within ninety (90)
calendar days after the due date for payment. By
the authority of the Debt Collection Act of 1982,
delinquent amounts due may be collected through
administrative offset or referred to private collec-
tion agencies. Information related to delinquent ac-
counts may also be reported to the appropriate
credit agencies.
(c) Assurance of payment. (1) If an EPA office
estimates that the fees for processing a request (or
aggregated requests as described in
§2.120(a)(5)(vi) of this section) will exceed
$25.00, that office need not search for, duplicate
or disclose records in response to the request(s)
until the requester assures payment of the total
amount of fees estimated to become due under this
section. In such cases, the EPA office will prompt-
ly inform the requester (by telephone it prac-
ticable) of the need to make assurance of payment.
(2) An EPA office may not require a requester
to make an advance payment, i.e. payment before
work is commenced or continued on a request, un-
less:
(i) A requester has previously failed to pay a
fee charged in a timely fashion (i.e., within 30
days after the date of the billing), or
(ii) The EPA office estimates or determines that
the allowable charges that a requester may be re-
quired to pay are likely to exceed $250.00. Then
the EPA office will notify the requester of the
likely cost and obtain satisfactory assurance of full
payment where the requester has a history of
prompt payment of FOIA fees, or require an ad-
vance payment of an amount up to the full esti-
mated charges in the case of requesters with no
history of payment. If such advance payment is
not received within 30 days after EPA's billing,
the request will not be processed and the request
will be closed. See also §2.112(d).
(d) Reduction or waiver of fee. (1) The fee
chargeable under this section shall be reduced or
waived by EPA if the Agency determines that dis-
closure of the information:
10
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§2.121
(i) Is in the public interest because it is likely
to contribute significantly to public understanding
of the operations or activities of the government;
and
(ii) Is not primarily in the commercial interest
of the requestor.
(2) Both of these requirements must be satisfied
before fees properly assessable can be waived or
reduced.
(3) The Agency will employ the following four
factors in determining whether the first require-
ment has been met:
(i) The subject of the request: Whether the sub-
ject of the requested records concerns "the oper-
ations or activities of the government";
(ii) The informative value of the information to
be disclosed: Whether the disclosure is "likely to
contribute to an understanding of government op-
erations or activities";
(iii) The contribution to an understanding of the
subject by the general public likely to result from
disclosure: Whether disclosure of the requested in-
formation will contribute to "public understand-
ing"; and
(iv) The significance of the contribution to pub-
lic understanding: Whether disclosure is likely to
contribute "significantly" to public understanding
of government operations or activities.
(4) The Agency will employ the following fac-
tors in determining whether the second require-
ment has been met:
(i) The existence and magnitude of a commer-
cial interest: Whether the requester has a commer-
cial interest that would be furthered by the re-
quested disclosure; and, if so
(ii) The primary interest in disclosure: Whether
the magnitude of the identified commercial interest
of the requester is sufficiently large, in comparison
with the public interest in disclosure, that disclo-
sure is "primarily in the commercial interest of
the requester."
(5) In all cases, the burden shall be on the re-
quester to present information in support of a re-
quest for a waiver of fees. A request for reduction
or waiver of fees should include:
(i) A clear statement of the requester's interest
in the requested documents;
(ii) The use proposed for the documents and
whether the requester will derive income or other
benefit from such use;
(iii) A statement of how the public will benefit
from such use and from the release of the re-
quested documents; and
(iv) If specialized use of the documents or in-
formation is contemplated, a statement of the re-
quester's qualifications that are relevant to the spe-
cialized use.
(6) A request for reduction or waiver of fees
shall be addressed to the appropriate Freedom of
Information Officer. The requester shall be in-
formed in writing of the Agency's decision wheth-
er to grant or deny the fee waiver or fee reduction
request. This decision may be appealed by letter
addressed to the EPA Freedom of Information Of-
ficer. The General Counsel shall decide such ap-
peals. The General Counsel may redelegate this
authority only to the Deputy General Counsel or
the Associate General Counsel for Grants, Con-
tracts and General Law.
(e) The Financial Management Office shall
maintain a record of all fees charged requesters for
searching for, reviewing and reproducing requested
records under this section. If after the end of 60
calendar days from the date on which request for
payment was made the requester has not submitted
payment to the appropriate EPA billing address (as
listed in §2.120(b)), the Financial Management
Division shall place the requester's name on a de-
linquent list which is sent to the EPA Freedom of
Information Officer. If a requester whose name ap-
pears on the delinquent list makes a request under
this part, the EPA Freedom of Information Officer
shall inform the requester that EPA will not proc-
ess the request until the requester submits payment
of the overdue fee from the earlier request. Any
request made by an individual who specifies an af-
filiation with or representation of a corporation,
association, law firm, or other organization shall
be deemed to be a request by the corporation, as-
sociation, law firm, or other organization. If an or-
ganization placed on the delinquent list can show
that the person who made the request for which
payment was overdue did not make the request on
behalf of the organization the organization will be
removed from the delinquent list but the name of
the individual shall remain on the list. A requester
shall not be placed on the delinquent list if a re-
quest for a reduction or for a waiver is pending
under paragraph (d) of this section.
[53 FR217, Jan. 5, 1988]
§2.121 Exclusions.
(a) Whenever a request is made which involves
access to records described in § 2.118(a)(7)(i)(A),
and
(1) The investigation or proceeding involves a
possible violation of criminal law; and
(2) There is reason to believe that the subject of
the investigation or proceeding is not aware of its
pendency, and disclosure of the existence of such
records could reasonably be expected to interfere
with enforcement proceedings, EPA shall, during
only such time as the circumstances continue, treat
the records as not subject to the requirements of
5 U.S.C. 552 and this subpart.
(b) Whenever informant records maintained by
the Agency under an informant's name or personal
identifier are requested by a third party according
11
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§2.201
to the informant's name or personal identifier and
the informant's status as an informant has not
been officially confirmed, EPA shall treat the
records as not subject to the requirements of 5
U.S.C. 552 and this subpart.
(c) No determination relying on this section
shall be issued without the concurrence of the
General Counsel or his designee. The General
Counsel has designated the Contracts and Informa-
tion Law Branch to act on these requests for con-
currence.
(d) An initial determination which only relies on
this section will not include notice of appeal
rights.
[53 FR219, Jan. 5, 1988]
Subpart B—Confidentiality of
Business Information
§2.201 Definitions.
For the purposes of this subpart:
(a) Person means an individual, partnership,
corporation, association, or other public or private
organization or legal entity, including Federal,
State or local governmental bodies and agencies
and their employees.
(b) Business means any person engaged in a
business, trade, employment, calling or profession,
whether or not all or any part of the net earnings
derived from such engagement by such person
inure (or may lawfully inure) to the benefit of any
private shareholder or individual.
(c) Business information (sometimes referred to
simply as information) means any information
which pertains to the interests of any business,
which was developed or acquired by that business,
and (except where the context otherwise requires)
which is possessed by EPA in recorded form.
(d) Affected business means, with reference to
an item of business information, a business which
has asserted (and not waived or withdrawn) a
business confidentiality claim covering the infor-
mation, or a business which could be expected to
make such a claim if it were aware that disclosure
of the information to the public was proposed.
(e) Reasons of business confidentiality include
the concept of trade secrecy and other related legal
concepts which give (or may give) a business the
right to preserve the confidentiality of business in-
formation and to limit its use or disclosure by oth-
ers in order that the business may obtain or retain
business advantages it derives from its rights in
the information. The definition is meant to encom-
pass any concept which authorizes a Federal agen-
cy to withhold business information under 5
U.S.C. 552(b)(4), as well as any concept which re-
quires EPA to withhold information from the pub-
lic for the benefit of a business under 18 U.S.C.
1905 or any of the various statutes cited in §2.301
through §2.309.
(f) [Reserved]
(g) Information which is available to the public
is information in EPA's possession which EPA
will furnish to any member of the public upon re-
quest and which EPA may make public, release or
otherwise make available to any person whether or
not its disclosure has been requested.
(h) Business confidentiality claim (or, simply,
claim) means a claim or allegation that business
information is entitled to confidential treatment for
reasons of business confidentiality, or a request for
a determination that such information is entitled to
such treatment.
(i) Voluntarily submitted information means
business information in EPA's possession—
(1) The submission of which EPA had no statu-
tory or contractual authority to require; and
(2) The submission of which was not prescribed
by statute or regulation as a condition of obtaining
some benefit (or avoiding some disadvantage)
under a regulatory program of general applicabil-
ity, including such regulatory programs as permit,
licensing, registration, or certification programs,
but excluding programs concerned solely or pri-
marily with the award or administration by EPA
of contracts or grants.
(j) Recorded means written or otherwise reg-
istered in some form for preserving information,
including such forms as drawings, photographs,
videotape, sound recordings, punched cards, and
computer tape or disk.
(k) [Reserved]
(1) Administrator, Regional Administrator, Gen-
eral Counsel, Regional Counsel, and Freedom of
Information Officer mean the EPA officers or em-
ployees occupying the positions so titled.
(m) EPA office means any organizational ele-
ment of EPA, at any level or location. (The terms
EPA office and EPA legal office are used in this
subpart for the sake of brevity and ease of ref-
erence. When this subpart requires that an action
be taken by an EPA office or by an EPA legal of-
fice, it is the responsibility of the officer or em-
ployee in charge of that office to take the action
or ensure that it is taken.)
(n) EPA legal office means the EPA General
Counsel and any EPA office over which the Gen-
eral Counsel exercises supervisory authority, in-
cluding the various Offices of Regional Counsel.
(See paragraph (m) of this section.)
(o) A working day is any day on which Federal
government offices are open for normal business.
Saturdays, Sundays, and official Federal holidays
are not working days; all other days are.
12
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§2.203
§2.202 Applicability of subpart; prior-
ity where provisions conflict;
records containing more than one
kind of information.
(a) Sections 2.201 through 2.215 establish basic
rules governing business confidentiality claims, the
handling by EPA of business information which is
or may be entitled to confidential treatment, and
determinations by EPA of whether information is
entitled to confidential treatment for reasons of
business confidentiality.
(b) Various statutes (other than 5 U.S.C. 552)
under which EPA operates contain special provi-
sions concerning the entitlement to confidential
treatment of information gathered under such stat-
utes. Sections 2.301 through 2.311 prescribe rules
for treatment of certain categories of business in-
formation obtained under the various statutory pro-
visions. Paragraph (b) of each of those sections
should be consulted to determine whether any of
those sections applies to the particular information
in question.
(c) The basic rules of §§2.201 through 2.215
govern except to the extent that they are modified
or supplanted by the special rules of §§2.301
through 2.311. In the event of a conflict between
the provisions of the basic rules and those of a
special rule which is applicable to the particular
information in question, the provision of the spe-
cial rule shall govern.
(d) If two or more of the sections containing
special rules apply to the particular information in
question, and the applicable sections prescribe
conflicting special rules for the treatment of the
information, the rule which provides greater or
wider availability to the public of the information
shall govern.
(e) For most purposes, a document or other
record may usefully be treated as a single unit of
information, even though in fact the document or
record is comprised of a collection of individual
items of information. However, in applying the
provisions of this subpart, it will often be nec-
essary to separate the individual items of informa-
tion into two or more categories, and to afford dif-
ferent treatment to the information in each such
category. The need for differentiation of this type
may arise, e.g., because a business confidentiality
claim covers only a portion of a record, or because
only a portion of the record is eligible for con-
fidential treatment. EPA offices taking action
under this subpart must be alert to this problem.
(f) In taking actions under this subpart, EPA of-
fices should consider whether it is possible to ob-
tain the affected business's consent to disclosure
of useful portions of records while protecting the
information which is or may be entitled to con-
fidentiality (e.g., by withholding such portions of
a record as would identify a business, or by dis-
closing data in the form of industry-wide aggre-
gates, multi-year averages or totals, or some simi-
lar form).
(g) This subpart does not apply to questions
concerning entitlement to confidential treatment or
information which concerns an individual solely in
his personal, as opposed to business, capacity.
[41 FR 36902, Sept. 1, 1976, as amended at 43 FR
40000, Sept. 8, 1978; 50 FR 51661, Dec. 18, 1985]
§2.203 Notice to be included in EPA
requests, demands, and forms;
method of asserting business con-
fidentiality claim; effect of failure
to assert claim at time of submis-
sion.
(a) Notice to be included in certain requests and
demands for information, and in certain forms.
Whenever an EPA office makes a written request
or demand that a business furnish information
which, in the office's opinion, is likely to be re-
garded by the business as entitled to confidential
treatment under this subpart, or whenever an EPA
office prescribes a form for use by businesses in
furnishing such information, the request, demand,
or form shall include or enclose a notice which—
(1) States that the business may, if it desires, as-
sert a business confidentiality claim covering part
or all of the information, in the manner described
by paragraph (b) of this section, and that informa-
tion covered by such a claim will be disclosed by
EPA only to the extent, and by means of the pro-
cedures, set forth in this subpart;
(2) States that if no such claim accompanies the
information when it is received by EPA, it may be
made available to the public by EPA without fur-
ther notice to the business; and
(3) Furnishes a citation of the location of this
subpart in the Code of Federal Regulations and the
FEDERAL REGISTER.
(b) Method and time of asserting business con-
fidentiality claim. A business which is submitting
information to EPA may assert a business con-
fidentiality claim covering the information by
placing on (or attaching to) the information, at the
time it is submitted to EPA, a cover sheet,
stamped or typed legend, or other suitable form of
notice employing language such as trade secret,
proprietary, or company confidential. Allegedly
confidential portions of otherwise non-confidential
documents should be clearly identified by the
business, and may be submitted separately to fa-
cilitate identification and handling by EPA. If the
business desires confidential treatment only until a
certain date or until the occurrence of a certain
event, the notice should so state.
(c) Effect of failure to assert claim at time of
submission of information. If information was sub-
mitted by a business to EPA on or after October
13
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§2.204
1, 1976, in response to an EPA request or demand
(or on an EPA-prescribed form) which contained
the substance of the notice required by paragraph
(a) of this section, and if no business confidential-
ity claim accompanied the information when it
was received by EPA, the inquiry to the business
normally required by §2.204(c)(2) need not be
made. If a claim covering the information is re-
ceived after the information itself is received, EPA
will make such efforts as are administratively
practicable to associate the late claim with copies
of the previously-submitted information in EPA
files (see §2.204(c)(l)). However, EPA cannot as-
sure that such efforts will be effective, in light of
the possibility of prior disclosure or widespread
prior dissemination of the information.
§ 2.204 Initial action by EPA office.
(a) Situations requiring action. This section pre-
scribes procedures to be used by EPA offices in
making initial determinations of whether business
information is entitled to confidential treatment for
reasons of business confidentiality. Action shall be
taken under this section whenever an EPA office:
(1) Learns that it is responsible for responding
to a request under 5 U.S.C. 552 for the release of
business information; in such a case, the office
shall issue an initial determination within the pe-
riod specified in §2.112;
(2) Desires to determine whether business infor-
mation in its possession is entitled to confidential
treatment, even though no request for release of
the information has been received; or
(3) Determines that it is likely that EPA eventu-
ally will be requested to disclose the information
at some future date and thus will have to deter-
mine whether the information is entitled to con-
fidential treatment. In such a case this section's
procedures should be initiated at the earliest prac-
ticable time, in order to increase the time available
for preparation and submission of comments and
for issuance of determinations, and to make easier
the task of meeting response deadlines if a request
for release of the information is later received
under 5 U.S.C. 552.
(b) Previous confidentiality determination. The
EPA office shall first ascertain whether there has
been a previous determination, issued by a Federal
court or by an EPA legal office acting under this
subpart, holding that the information in question is
entitled to confidential treatment for reasons of
business confidentiality.
(1) If such a determination holds that the infor-
mation is entitled to confidential treatment, the
EPA Office shall furnish any person whose re-
quest for the information is pending under 5
U.S.C. 552 an initial determination (see §2.111
and §2.113) that the information has previously
been determined to be entitled to confidential
treatment, and that the request is therefore denied.
The office shall furnish such person the appro-
priate case citation or EPA determination. If the
EPA office believes that a previous determination
which was issued by an EPA legal office may be
improper or no longer valid, the office shall so in-
form the EPA legal office, which shall consider
taking action under § 2.205(h).
(2) With respect to all information not known to
be covered by such a previous determination, the
EPA office shall take action under paragraph (c)
of this section.
(c) Determining existence of business confiden-
tiality claims. (1) Whenever action under this para-
graph is required by paragraph (b)(2) of this sec-
tion, the EPA office shall examine the information
and the office's records to determine which busi-
nesses, if any, are affected businesses (see
§2.201(d)), and to determine which businesses if
any, have asserted business confidentiality claims
which remain applicable to the information. If any
business is found to have asserted an applicable
claim, the office shall take action under paragraph
(d) of this section with respect to each such claim.
(2)(i) If the examination conducted under para-
graph (c)(l) of this section discloses the existence
of any business which, although it has not asserted
a claim, might be expected to assert a claim if it
knew EPA proposed to disclose the information,
the EPA office shall contact a responsible official
of each such business to learn whether the busi-
ness asserts a claim covering the information.
However, no such inquiry need be made to any
business—
(A) Which failed to assert a claim covering the
information when responding to an EPA request or
demand, or supplying information on an EPA
form, which contained the substance of the state-
ments prescribed by § 2.203(a);
(B) Which otherwise failed to assert a claim
covering the information after being informed by
EPA that such failure could result in disclosure of
the information to the public; or
(C) Which has otherwise waived or withdrawn
a claim covering the information.
(ii) If a request for release of the information
under 5 U.S.C. 552 is pending at the time inquiry
is made under this paragraph (c)(2), the inquiry
shall be made by telephone or equally prompt
means, and the responsible official contacted shall
be informed that any claim the business wishes to
assert must be brought to the EPA office's atten-
tion no later than the close of business on the third
working day after such inquiry.
(iii) A record shall be kept of the results of any
inquiry under this paragraph (c)(2). If any business
makes a claim covering the information, the EPA
office shall take further action under paragraph (d)
of this section.
14
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§2.204
(3) If, after the examination under paragraph
(c)(l) of this section, and after any inquiry made
under paragraph (c)(2) of this section, the EPA of-
fice knows of no claim covering the information
and the time for response to any inquiry has
passed, the information shall be treated for pur-
poses of this subpart as not entitled to confidential
treatment.
(d) Preliminary determination. Whenever action
under this paragraph is required by paragraph
(c)(l) or (2) of this section on any business's
claim, the EPA Office shall make a determination
with respect to each such claim. Each determina-
tion shall be made after consideration of the provi-
sions of §2.203, the applicable substantive criteria
in §2.208 or elsewhere in this subpart, and any
previously-issued determinations under this subpart
which are applicable.
(1) If, in connection with any business's claim,
the office determines that the information may be
entitled to confidential treatment, the office shall—
(i) Furnish the notice of opportunity to submit
comments prescribed by paragraph (e) of this sec-
tion to each business which is known to have as-
serted an applicable claim and which has not pre-
viously been furnished such notice with regard to
the information in question;
(ii) Furnish, to any person whose request for re-
lease of the information is pending under 5 U.S.C.
552, a determination (in accordance with §2.113)
that the information may be entitled to confidential
treatment under this subpart and 5 U.S.C.
552(b)(4), that further inquiry by EPA pursuant to
this subpart is required before a final determina-
tion on the request can be issued, that the person's
request is therefore initially denied, and that after
further inquiry a final determination will be issued
by an EPA legal office; and
(iii) Refer the matter to the appropriate EPA
legal office, furnishing the information required by
paragraph (f) of this section after the time has
elapsed for receipt of comments from the affected
business.
(2) If, in connection with all applicable claims,
the office determines that the information clearly
is not entitled to confidential treatment, the office
shall take the actions required by §2.205(f). How-
ever, if a business has previously been furnished
notice under §2.205(f) with respect to the same
information, no further notice need be furnished to
that business. A copy of each notice furnished to
a business under this paragraph (d)(2) and
§2.205(f) shall be forwarded promptly to the ap-
propriate EPA legal office.
(e) Notice to affected businesses; opportunity to
comment. (1) Whenever required by paragraph
(d)(l) of this section, the EPA office shall prompt-
ly furnish each business a written notice stating
that EPA is determining under this subpart wheth-
er the information is entitled to confidential treat-
ment, and affording the business an opportunity to
comment. The notice shall be furnished by cer-
tified mail (return receipt requested), by personal
delivery, or by other means which allows verifica-
tion of the fact and date of receipt. The notice
shall state the address of the office to which the
business's comments shall be addressed (the EPA
office furnishing the notice, unless the General
Counsel has directed otherwise), the time allowed
for comments, and the method for requesting a
time extension under §2.205(b)(2). The notice
shall further state that EPA will construe a
business's failure to furnish timely comments as a
waiver of the business's claim.
(2) If action under this section is occasioned by
a request for the information under 5 U.S.C. 552,
the period for comments shall be 15 working days
after the date of the business's receipt of the writ-
ten notice. In other cases, the EPA office shall es-
tablish a reasonable period for comments (not less
than 15 working days after the business's receipt
of the written notice). The time period for com-
ments shall be considered met if the business's
comments are postmarked or hand delivered to the
office designated in the notice by the date speci-
fied. In all cases, the notice shall call the
business's attention to the provisions of §2.205(b).
(3) At or about the time the written notice is
furnished, the EPA office shall orally inform a re-
sponsible representative of the business (by tele-
phone or otherwise) that the business should ex-
pect to receive the written notice, and shall request
the business to contact the EPA office if the writ-
ten notice has not been received within a few
days, so that EPA may furnish a duplicate notice.
(4) The written notice required by paragraph
(e)(l) of this section shall invite the business's
comments on the following points (subject to para-
graph (e)(5) of this section):
(i) The portions of the information which are al-
leged to be entitled to confidential treatment;
(ii) The period of time for which confidential
treatment is desired by the business (e.g., until a
certain date, until the occurrence of a specified
event, or permanently);
(iii) The purpose for which the information was
furnished to EPA and the approximate date of sub-
mission, if known;
(iv) Whether a business confidentiality claim ac-
companied the information when it was received
by EPA;
(v) Measures taken by the business to guard
against undesired disclosure of the information to
others;
(vi) The extent to which the information has
been disclosed to others, and the precautions taken
in connection therewith;
15
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§2.205
(vii) Pertinent confidentiality determinations, if
any, by EPA or other Federal agencies, and a copy
of any such determination, or reference to it, if
available;
(viii) Whether the business asserts that disclo-
sure of the information would be likely to result
in substantial harmful effects on the business'
competitive position, and if so, what those harmful
effects would be, why they should be viewed as
substantial, and an explanation of the causal rela-
tionship between disclosure and such harmful ef-
fects; and
(ix) Whether the business asserts that the infor-
mation is voluntarily submitted information as de-
fined in § 2.201(i), and if so, whether and why dis-
closure of the information would tend to lessen the
availability to EPA of similar information in the
future.
(5) To the extent that the EPA office already
possesses the relevant facts, the notice need not
solicit responses to the matters addressed in para-
graphs (e)(4) (i) through (ix) of this section, al-
though the notice shall request confirmation of
EPA's understanding of such facts where appro-
priate.
(6) The notice shall refer to § 2.205(c) and shall
include the statement prescribed by § 2.203(a).
(f) Materials to be furnished to EPA legal of-
fice. When a matter is referred to an EPA legal of-
fice under paragraph (d)(l) of this section, the
EPA office taking action under this section shall
forward promptly to the EPA legal office the fol-
lowing items:
(1) A copy of the information in question, or
(where the quantity or form of the information
makes forwarding a copy of the information im-
practical) representative samples, a description of
the information, or both;
(2) A description of the circumstances and date
of EPA's acquisition of the information;
(3) The name, address, and telephone number of
the EPA employee(s) most familiar with the infor-
mation;
(4) The name, address and telephone number of
each business which asserts an applicable business
confidentiality claim;
(5) A copy of each applicable claim (or the
record of the assertion of the claim), and a de-
scription of when and how each claim was as-
serted;
(6) Comments concerning each business's com-
pliance or noncompliance with applicable require-
ments of §2.203;
(7) A copy of any request for release of the in-
formation pending under 5 U.S.C. 552;
(8) A copy of the business's comments on
whether the information is entitled to confidential
treatment;
(9) The office's comments concerning the ap-
propriate substantive criteria under this subpart,
and information the office possesses concerning
the information's entitlement to confidential treat-
ment; and
(10) Copies of other correspondence or memo-
randa which pertain to the matter.
[41 FR 36902, Sept. 1, 1976, as amended at 43 FR
40000, Sept. 8, 1978; 50 FR 51661, Dec. 18, 1985]
§2.205 Final confidentiality deter-
mination by EPA legal office.
(a) Role of EPA legal office. (1) The appropriate
EPA legal office (see paragraph (i) of this section)
is responsible for making the final administrative
determination of whether or not business informa-
tion covered by a business confidentiality claim is
entitled to confidential treatment under this sub-
part.
(2) When a request for release of the informa-
tion under 5 U.S.C. 552 is pending, the EPA legal
office's determination shall serve as the final de-
termination on appeal from an initial denial of the
request.
(i) If the initial denial was issued under
§2.204(b)(l), a final determination by the EPA
legal office is necessary only if the requestor has
actually filed an appeal.
(ii) If the initial denial was issued under
§2.204(d)(l), however, the EPA legal office shall
issue a final determination in every case, unless
the request has been withdrawn. (Initial denials
under §2.204(d)(l) are of a procedural nature, to
allow further inquiry into the merits of the matter,
and a requestor is entitled to a decision on the
merits.) If an appeal from such a denial has not
been received by the EPA Freedom of Information
Officer on the tenth working day after issuance of
the denial, the matter shall be handled as if an ap-
peal had been received on that day, for purposes
of establishing a schedule for issuance of an ap-
peal decision under §2.117 of this part.
(b) Comment period; extensions; untimeliness as
waiver of claim. (1) Each business which has been
furnished the notice and opportunity to comment
prescribed by §2.204(d)(l) and §2.204(e) shall
furnish its comments to the office specified in the
notice in time to be postmarked or hand delivered
to that office not later than the date specified in
the notice (or the date established in lieu thereof
under this section).
(2) The period for submission of comments may
be extended if, before the comments are due, a re-
quest for an extension of the comment period is
made by the business and approved by the EPA
legal office. Except in extraordinary cir-
cumstances, the EPA legal office will not approve
16
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§2.205
such an extension without the consent of any per-
son whose request for release of the information
under 5 U.S.C. 552 is pending.
(3) The period for submission of comments by
a business may be shortened in the manner de-
scribed in paragraph (g) of this section.
(4) If a business's comments have not been re-
ceived by the specified EPA office by the date
they are due (including any approved extension),
that office shall promptly inquire whether the busi-
ness has complied with paragraph (b)(l) of this
section. If the business has complied with para-
graph (b)(l) but the comments have been lost in
transmission, duplicate comments shall be re-
quested.
(c) Confidential treatment of comments from
business. If information submitted to EPA by a
business as part of its comments under this section
pertains to the business's claim, is not otherwise
possessed by EPA, and is marked when received
in accordance with §2.203(b), it will be regarded
by EPA as entitled to confidential treatment and
will not be disclosed by EPA without the
business's consent, unless its disclosure is duly or-
dered by a Federal court, notwithstanding other
provisions of this subpart to the contrary.
(d) Types affinal determinations; matters to be
considered. (1) If the EPA legal office finds that
a business has failed to furnish comments under
paragraph (b) of this section by the specified due
date, it shall determine that the business has
waived its claim. If, after application of the pre-
ceding sentence, no claim applies to the informa-
tion, the office shall determine that the information
is not entitled to confidential treatment under this
subpart and, subject to §2.210, is available to the
public.
(2) In all other cases, the EPA legal office shall
consider each business's claim and comments, the
various provisions of this subpart, any previously-
issued determinations under this subpart which are
pertinent, the materials furnished it under
§ 2.204(f), and such other materials as it finds ap-
propriate. With respect to each claim, the office
shall determine whether or not the information is
entitled to confidential treatment for the benefit of
the business that asserted the claim, and the period
of any such entitlement (e.g., until a certain date,
until the occurrence of a specified event, or per-
manently), and shall take further action under
paragraph (e) or (f) of this section, as appropriate.
(3) Whenever the claims of two or more busi-
nesses apply to the same information, the EPA
legal office shall take action appropriate under the
particular circumstances to protect the interests of
all persons concerned (including any person whose
request for the information is pending under 5
U.S.C. 552).
(e) Determination that information is entitled to
confidential treatment. If the EPA legal office de-
termines that the information is entitled to con-
fidential treatment for the full period requested by
the business which made the claim, EPA shall
maintain the information in confidence for such
period, subject to paragraph (h) of this section,
§2.209, and the other provisions of this subpart
which authorize disclosure in specified cir-
cumstances, and the office shall so inform the
business. If any person's request for the release of
the information is then pending under 5 U.S.C.
552, the EPA legal office shall issue a final deter-
mination denying that request.
(f) Determination that information is not enti-
tled to confidential treatment; notice; waiting pe-
riod; release of information. (1) Notice of denial
(or partial denial) of a business confidentiality
claim, in the form prescribed by paragraph (f)(2)
of this section, shall be furnished—
(i) By the EPA office taking action under
§2.204, to each business on behalf of which a
claim has been made, whenever §2.204(d)(2) re-
quires such notice; and
(ii) By the EPA legal office taking action under
this section, to each business which has asserted a
claim applicable to the information and which has
furnished timely comments under paragraph (b) of
this section, whenever the EPA legal office deter-
mines that the information is not entitled to con-
fidential treatment under this subpart for the bene-
fit of the business, or determines that the period
of any entitlement to confidential treatment is
shorter than that requested by the business.
(2) The notice prescribed by paragraph (f)(l) of
this section shall be written, and shall be furnished
by certified mail (return receipt requested), by per-
sonal delivery, or by other means which allows
verification of the fact of receipt and the date of
receipt. The notice shall state the basis for the de-
termination, that it constitutes final agency action
concerning the business confidentiality claim, and
that such final agency action may be subject to ju-
dicial review under Chapter 7 of Title 5, United
States Code. With respect to EPA's implementa-
tion of the determination, the notice shall state that
(subject to §2.210) EPA will make the informa-
tion available to the public on the tenth working
day after the date of the business's receipt of the
written notice (or on such later date as is estab-
lished in lieu thereof by the EPA legal office
under paragraph (f)(3) of this section), unless the
EPA legal office has first been notified of the
business's commencement of an action in a Fed-
eral court to obtain judicial review of the deter-
mination, and to obtain preliminary injunctive re-
lief against disclosure. The notice shall further
state that if such an action is timely commenced,
17
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§2.206
EPA may nonetheless make the information avail-
able to the public (in the absence of an order by
the court to the contrary), once the court has de-
nied a motion for a preliminary injunction in the
action or has otherwise upheld the EPA determina-
tion, or whenever it appears to the EPA legal of-
fice, after reasonable notice to the business, that
the business is not taking appropriate measures to
obtain a speedy resolution of the action. If the in-
formation has been found to be temporarily enti-
tled to confidential treatment, the notice shall fur-
ther state that the information will not be disclosed
prior to the end of the period of such temporary
entitlement to confidential treatment.
(3) The period established in a notice under
paragraph (f)(2) of this section for commencement
of an action to obtain judicial review may be ex-
tended if, before the expiration of such period, a
request for an extension is made by the business
and approved by the EPA legal office. Except in
extraordinary circumstances, the EPA legal office
will not approve such an extension without the
consent of any person whose request for release of
the information under 5 U.S.C. 552 is pending.
(4) After the expiration of any period of tem-
porary entitlement to confidential treatment, a de-
termination under this paragraph (f) shall be im-
plemented by the EPA legal office by making the
information available to the public (in the absence
of a court order prohibiting disclosure) when-
ever—
(i) The period provided for commencement by
a business of an action to obtain judicial review
of the determination has expired without notice to
the EPA legal office of commencement of such an
action;
(ii) The court, in a timely-commenced action,
has denied the business' motion for a preliminary
injunction, or has otherwise upheld the EPA deter-
mination; or
(iii) The EPA legal office, after reasonable no-
tice has been provided to the business, finds that
the business is not taking appropriate measures to
obtain a speedy resolution of the timely-com-
menced action.
(5) Any person whose request for release of the
information under 5 U.S.C. 552 is pending at the
time notice is given under paragraph (f)(2) of this
section shall be furnished a determination under 5
U.S.C. 552 stating the circumstances under which
the information will be released.
(g) Emergency situations. If the General Coun-
sel finds that disclosure of information covered by
a claim would be helpful in alleviating a situation
posing an imminent and substantial danger to pub-
lic health or safety, he may prescribe and make
known to interested persons such shorter comment
period (paragraph (b) of this section), post-deter-
mination waiting period (paragraph (f) of this sec-
tion), or both, as he finds necessary under the cir-
cumstances.
(h) Modification of prior determinations. A de-
termination that information is entitled to con-
fidential treatment for the benefit of a business,
made under this subpart by an EPA legal office,
shall continue in effect in accordance with its
terms until an EPA legal office taking action
under this section, or under §2.206 or §2.207, is-
sues a final determination stating that the earlier
determination no longer describes correctly the in-
formation's entitlement to confidential treatment
because of change in the applicable law, newly-
discovered or changed facts, or because the earlier
determination was clearly erroneous. If an EPA
legal office tentatively concludes that such an ear-
lier determination is of questionable validity, it
shall so inform the business, and shall afford the
business an opportunity to furnish comments on
pertinent issues in the manner described by
§2.204(e) and paragraph (b) of this section. If,
after consideration of any timely comments sub-
mitted by the business, the EPA legal office makes
a revised final determination that the information
is not entitled to confidential treatment, or that the
period of entitlement to such treatment will end
sooner than it would have ended under the earlier
determination, the office will follow the procedure
described in paragraph (f) of this section. Deter-
minations under this section may be made only by,
or with the concurrence of, the General Counsel.
(i) Delegation and redelegation of authority.
Unless the General Counsel otherwise directs, or
this subpart otherwise specifically provides, deter-
minations and actions required by this subpart to
be made or taken by an EPA legal office shall be
made or taken by the appropriate Regional counsel
whenever the EPA office taking action under
§ 2.204 or § 2.206(b) is under the supervision of a
Regional Administrator, and by the General Coun-
sel in all other cases. The General Counsel may
redelegate any or all of his authority under this
subpart to any attorney employed by EPA on a
full-time basis under the General Counsel's super-
vision. A Regional Counsel may redelegate any or
all of his authority under this subpart to any attor-
ney employed by EPA on a full-time basis under
the Regional counsel's supervision.
[41 FR 36902, Sept. 1, 1976, as amended at 50 FR
51661, Dec. 18, 1985]
§2.206 Advance confidentiality deter-
minations.
(a) An advance determination under this section
may be issued by an EPA legal office if—
(1) EPA has requested or demanded that a busi-
ness furnish business information to EPA;
18
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§2.208
(2) The business asserts that the information, if
submitted, would constitute voluntarily submitted
information under §2.201(i);
(3) The business will voluntarily submit the in-
formation for use by EPA only if EPA first deter-
mines that the information is entitled to confiden-
tial treatment under this subpart; and
(4) The EPA office which desires submission of
the information has requested that the EPA legal
office issue a determination under this section.
(b) The EPA office requesting an advance deter-
mination under this section shall—
(1) Arrange to have the business furnish directly
to the EPA legal office a copy of the information
(or, where feasible, a description of the nature of
the information sufficient to allow a determination
to be made), as well as the business's comments
concerning the matters addressed in §2.204(e)(4),
excluding, however, matters addressed in §2.204
(e)(4)(iii) and (e)(4)(iv); and
(2) Furnish to the EPA legal office the materials
referred to in § 2.204(f) (3), (7), (8), and (9).
(c) In making a determination under this sec-
tion, the EPA legal office shall first determine
whether or not the information would constitute
voluntarily submitted information under §2.201(i).
If the information would constitute voluntarily
submitted information, the legal office shall further
determine whether the information is entitled to
confidential treatment.
(d) If the EPA legal office determines that the
information would not constitute voluntarily sub-
mitted information, or determines that it would
constitute voluntarily submitted information but
would not be entitled to confidential treatment, it
shall so inform the business and the EPA office
which requested the determination, stating the
basis of the determination, and shall return to the
business all copies of the information which it
may have received from the business (except that
if a request under 5 U.S.C. 552 for release of the
information is received while the EPA legal office
is in possession of the information, the legal office
shall retain a copy of the information, but shall not
disclose it unless ordered by a Federal court to do
so). The legal office shall not disclose the infor-
mation to any other EPA office or employee and
shall not use the information for any purpose ex-
cept the determination under this section, unless
otherwise directed by a Federal court.
(e) If the EPA legal office determines that the
information would constitute voluntarily submitted
information and that it is entitled to confidential
treatment, it shall so inform the EPA office which
requested the determination and the business
which submitted it, and shall forward the informa-
tion to the EPA office which requested the deter-
mination.
§2.207 Class determinations.
(a) The General Counsel may make and issue a
class determination under this section if he finds
that—
(1) EPA possesses, or is obtaining, related items
of business information;
(2) One or more characteristics common to all
such items of information will necessarily result in
identical treatment for each such item under one
or more of the provisions in this subpart, and that
it is therefore proper to treat all such items as a
class for one or more purposes under this subpart;
and
(3) A class determination would serve a useful
purpose.
(b) A class determination shall clearly identify
the class of information to which it pertains.
(c) A class determination may state that all of
the information in the class—
(1) Is, or is not, voluntarily submitted informa-
tion under §2.201(i);
(2) Is, or is not, governed by a particular section
of this subpart, or by a particular set of substantive
criteria under this subpart;
(3) Fails to satisfy one or more of the applicable
substantive criteria, and is therefore ineligible for
confidential treatment;
(4) Satisfies one or more of the applicable sub-
stantive criteria; or
(5) Satisfies one or more of the applicable sub-
stantive criteria during a certain period, but will be
ineligible for confidential treatment thereafter.
(d) The purpose of a class determination is sim-
ply to make known the Agency's position regard-
ing the manner in which information within the
class will be treated under one or more of the pro-
visions of this subpart. Accordingly, the notice of
opportunity to submit comments referred to in
§2.204(d)(l)(ii) and §2.205(b), and the list of ma-
terials required to be furnished to the EPA legal
office under §2.204(d)(l)(iii), may be modified to
reflect the fact that the class determination has
made unnecessary the submission of materials per-
tinent to one or more issues. Moreover, in appro-
priate cases, action based on the class determina-
tion may be taken under §2.204(b)(l), §2.204(d),
§ 2.205(d), or § 2.206. However, the existence of a
class determination shall not, of itself, affect any
right a business may have to receive any notice
under §2.204(d)(2) or §2.205(f).
§2.208 Substantive criteria for use in
confidentiality determinations.
Determinations issued under §§2.204 through
2.207 shall hold that business information is enti-
tled to confidential treatment for the benefit of a
particular business if—
19
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§2.209
(a) The business has asserted a business con-
fidentiality claim which has not expired by its
terms, nor been waived nor withdrawn;
(b) The business has satisfactorily shown that it
has taken reasonable measures to protect the con-
fidentiality of the information, and that it intends
to continue to take such measures;
(c) The information is not, and has not been,
reasonably obtainable without the business's con-
sent by other persons (other than governmental
bodies) by use of legitimate means (other than dis-
covery based on a showing of special need in a ju-
dicial or quasi-judicial proceeding);
(d) No statute specifically requires disclosure of
the information; and
(e) Either—
(1) The business has satisfactorily shown that
disclosure of the information is likely to cause
substantial harm to the business's competitive po-
sition; or
(2) The information is voluntarily submitted in-
formation (see §2.201(i)), and its disclosure would
be likely to impair the Government's ability to ob-
tain necessary information in the future.
§2.209 Disclosure
cumstances.
in special cir-
(a) General. Information which, under this sub-
part, is not available to the public may nonetheless
be disclosed to the persons, and in the cir-
cumstances, described by paragraphs (b) through
(g) of this section. (This section shall not be con-
strued to restrict the disclosure of information
which has been determined to be available to the
public. However, business information for which a
claim of confidentiality has been asserted shall be
treated as being entitled to confidential treatment
until there has been a determination in accordance
with the procedures of this subpart that the infor-
mation is not entitled to confidential treatment.)
(b) Disclosure to Congress or the Comptroller
General. (1) Upon receipt of a written request by
the Speaker of the House, President of the Senate,
chairman of a committee or subcommittee, or the
Comptroller General, as appropriate, EPA will dis-
close business information to either House of Con-
gress, to a committee or subcommittee of Con-
gress, or to the Comptroller General, unless a stat-
ute forbids such disclosure.
(2) If the request is for business information
claimed as confidential or determined to be con-
fidential, the EPA office processing the request
shall provide notice to each affected business of
the type of information disclosed and to whom it
is disclosed. Notice shall be given at least ten days
prior to disclosure, except where it is not possible
to provide notice ten days in advance of any date
established by the requesting body for responding
to the request. Where ten days advance notice can-
not be given, as much advance notice as possible
shall be provided. Where notice cannot be given
before the date established by the requesting body
for responding to the request, notice shall be given
as promptly after disclosure as possible. Such no-
tice may be given by notice published in the FED-
ERAL REGISTER or by letter sent by certified mail,
return receipt requested, or telegram. However, if
the requesting body asks in writing that no notice
under this subsection be given, EPA will give no
notice.
(3) At the time EPA discloses the business in-
formation, EPA will inform the requesting body of
any unresolved business confidentiality claim
known to cover the information and of any deter-
mination under this subpart that the information is
entitled to confidential treatment.
(c) Disclosure to other Federal agencies. EPA
may disclose business information to another Fed-
eral agency if—
(1) EPA receives a written request for disclo-
sures of the information from a duly authorized
officer or employee of the other agency or on the
initiative of EPA when such disclosure is nec-
essary to enable the other agency to carry out a
function on behalf of EPA;
(2) The request, if any, sets forth the official
purpose for which the information is needed;
(3) When the information has been claimed as
confidential or has been determined to be con-
fidential, the responsible EPA office provides no-
tice to each affected business of the type of infor-
mation to be disclosed and to whom it is to be
disclosed. At the discretion of the office, such no-
tice may be given by notice published in the FED-
ERAL REGISTER at least 10 days prior to disclo-
sure, or by letter sent by certified mail return re-
ceipt requested or telegram either of which must
be received by the affected business at least 10
days prior to disclosure. However, no notice shall
be required when EPA furnishes business informa-
tion to another Federal agency to perform a func-
tion on behalf of EPA, including but not limited
to—
(i) Disclosure to the Department of Justice for
purposes of investigation or prosecution of civil or
criminal violations of Federal law related to EPA
activities;
(ii) Disclosure to the Department of Justice for
purposes of representing EPA in any matter; or
(iii) Disclosure to any Federal agency for pur-
poses of performing an EPA statutory function
under an interagency agreement.
(4) EPA notifies the other agency of any unre-
solved business confidentiality claim covering the
information and of any determination under this
20
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§2.211
subpart that the information is entitled to confiden-
tial treatment, and that further disclosure of the in-
formation may be a violation of 18 U.S.C. 1905;
and
(5) The other agency agrees in writing not to
disclose further any information designated as con-
fidential unless—
(i) The other agency has statutory authority both
to compel production of the information and to
make the proposed disclosure, and the other agen-
cy has, prior to disclosure of the information to
anyone other than its officers and employees, fur-
nished to each affected business at least the same
notice to which the affected business would be en-
titled under this subpart;
(ii) The other agency has obtained the consent
of each affected business to the proposed disclo-
sure; or
(iii) The other agency has obtained a written
statement from the EPA General Counsel or an
EPA Regional Counsel that disclosure of the infor-
mation would be proper under this subpart.
(d) Court-ordered disclosure. EPA may disclose
any business information in any manner and to the
extent ordered by a Federal court. Where possible,
and when not in violation of a specific directive
from the court, the EPA office disclosing informa-
tion claimed as confidential or determined to be
confidential shall provide as much advance notice
as possible to each affected business of the type
of information to be disclosed and to whom it is
to be disclosed, unless the affected business has
actual notice of the court order. At the discretion
of the office, subject to any restrictions by the
court, such notice may be given by notice in the
FEDERAL REGISTER, letter sent by certified mail
return receipt requested, or telegram.
(e) Disclosure within EPA. An EPA office, offi-
cer, or employee may disclose any business infor-
mation to another EPA office, officer, or employee
with an official need for the information.
(f) Disclosure with consent of business. EPA
may disclose any business information to any per-
son if EPA has obtained the prior consent of each
affected business to such disclosure.
(g) Record of disclosures to be maintained.
Each EPA office which discloses information to
Congress, a committee or subcommittee of Con-
gress, the Comptroller General, or another Federal
agency under the authority of paragraph (b) or (c)
of this section, shall maintain a record of the fact
of such disclosure for a period of not less than 36
months after such disclosure. Such a record, which
may be in the form of a log, shall show the name
of the affected businesses, the date of disclosure,
the person or body to whom disclosure was made,
and a description of the information disclosed.
[41 FR 36902, Sept. 1, 1976, as amended at 43 FR
40000, Sept. 8, 1978; 50 FR 51661, Dec. 18, 1985]
§2.210 Nondisclosure for reasons
other than business confidentiality
or where disclosure is prohibited
by other statute.
(a) Information which is not entitled to con-
fidential treatment under this subpart shall be
made available to the public (using the procedures
set forth in §§2.204 and 2.205) if its release is re-
quested under 5 U.S.C. 552, unless EPA deter-
mines (under subpart A of this part) that, for rea-
sons other than reasons of business confidentiality,
the information is exempt from mandatory disclo-
sure and cannot or should not be made available
to the public. Any such determination under sub-
part A shall be coordinated with actions taken
under this subpart for the purpose of avoiding
delay in responding to requests under 5 U.S.C.
552.
(b) Notwithstanding any other provision of this
subpart, if any statute not cited in this subpart ap-
pears to require EPA to give confidential treatment
to any business information for reasons of busi-
ness confidentiality, the matter shall be referred
promptly to an EPA legal office for resolution.
Pending resolution, such information shall be treat-
ed as if it were entitled to confidential treatment.
§2.211 Safeguarding of business infor-
mation; penalty for wrongful disclo-
sure.
(a) No EPA officer or employee may disclose,
or use for his or her private gain or advantage, any
business information which came into his or her
possession, or to which he or she gained access,
by virtue of his or her official position or employ-
ment, except as authorized by this subpart.
(b) Each EPA officer or employee who has cus-
tody or possession of business information shall
take appropriate measures to properly safeguard
such information and to protect against its im-
proper disclosure.
(c) Violation of paragraph (a) or (b) of this sec-
tion shall constitute grounds for dismissal, suspen-
sion, fine, or other adverse personnel action. Will-
ful violation of paragraph (a) of this section may
result in criminal prosecution under 18 U.S.C.
1905 or other applicable statute.
(d) Each contractor or subcontractor with the
United States Government, and each employee of
such contractor or subcontractor, who is furnished
business information by EPA under §§2.301(h),
§2.302(h), 2.304(h), 2.305(h), 2.306(j), 2.307(h),
2.308(i), or 2.310(h) shall use or disclose that in-
formation only as permitted by the contract or
subcontract under which the information was fur-
nished. Contractors or subcontractors shall take
steps to properly safeguard business information
including following any security procedures for
handling and safeguarding business information
21
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§2.212
which are contained in any manuals, procedures,
regulations, or guidelines provided by EPA. Any
violation of this paragraph shall constitute grounds
for suspension or debarment of the contractor or
subcontractor in question. A willful violation of
this paragraph may result in criminal prosecution.
[41 FR 36902, Sept. 1, 1976, as amended at 50 FR
51662, Dec. 18, 1985; 58 FR 461, Jan. 5, 1993]
§2.212 Establishment of control offices
for categories of business informa-
tion.
(a) The Administrator, by order, may establish
one or more mutually exclusive categories of busi-
ness information, and may designate for each such
category an EPA office (hereinafter referred to as
a control office) which shall have responsibility
for taking actions (other than actions required to
be taken by an EPA legal office) with respect to
all information within such category.
(b) If a control office has been assigned respon-
sibility for a category of business information, no
other EPA office, officer, or employee may make
available to the public (or otherwise disclose to
persons other than EPA officers and employees)
any information in that category without first ob-
taining the concurrence of the control office. Re-
quests under 5 U.S.C. 552 for release of such in-
formation shall be referred to the control office.
(c) A control office shall take the actions and
make the determinations required by §2.204 with
respect to all information in any category for
which the control office has been assigned respon-
sibility.
(d) A control office shall maintain a record of
the following, with respect to items of business in-
formation in categories for which it has been as-
signed responsibility:
(1) Business confidentiality claims;
(2) Comments submitted in support of claims;
(3) Waivers and withdrawals of claims;
(4) Actions and determinations by EPA under
this subpart;
(5) Actions by Federal courts; and
(6) Related information concerning business
confidentiality.
§2.213 Designation by business of ad-
dressee for notices and inquiries.
(a) A business which wishes to designate a per-
son or office as the proper addressee of commu-
nications from EPA to the business under this sub-
part may do so by furnishing in writing to the
Freedom of Information Officer (A-101), Environ-
mental Protection Agency, 401 M St. SW., Wash-
ington, DC 20460, the following information: The
name and address of the business making the des-
ignation; the name, address, and telephone number
of the designated person or office; and a request
that EPA inquiries and communications (oral and
written) under this subpart, including inquiries and
notices which require reply within deadlines if the
business is to avoid waiver of its rights under this
subpart, be furnished to the designee pursuant to
this section. Only one person or office may serve
at any one time as a business's designee under this
subpart.
(b) If a business has named a designee under
this section, the following EPA inquiries and no-
tices to the business shall be addressed to the des-
ignee:
(1) Inquiries concerning a business's desire to
assert a business confidentiality claim, under
§2.204(c)(2)(i)(A);
(2) Notices affording opportunity to substantiate
confidentiality claims, under §2.204(d)(l) and
§2.204(e);
(3) Inquires concerning comments, under
§2.205(b)(4);
(4) Notices of denial of confidential treatment
and proposed disclosure of information, under
§2.205(f);
(5) Notices concerning shortened comment and/
or waiting periods under § 2.205(g);
(6) Notices concerning modifications or overrul-
ings of prior determinations, under §2.205(h);
(7) Notices to affected businesses under
§§2.301(g) and 2.301(h) and analogous provisions
in §§2.302, 2.303, 2.304, 2.305, 2.306, 2.307, and
2.308; and
(8) Notices to affected businesses under § 2.209.
(c) The Freedom of Information Officer shall, as
quickly as possible, notify all EPA offices that
may possess information submitted by the business
to EPA, the Regional Freedom of Information Of-
fices, the Office of General Counsel, and the of-
fices of Regional Counsel of any designation re-
ceived under this section. Businesses making des-
ignations under this section should bear in mind
that several working days may be required for dis-
semination of this information within EPA and
that some EPA offices may not receive notice of
such designations.
[41 FR 36902, Sept. 1, 1976, as amended at 43 FR
40001, Sept. 8, 1978]
§ 2.214 Defense of Freedom of Informa-
tion Act suits; participation by af-
fected business.
(a) In making final confidentiality determina-
tions under this subpart, the EPA legal office re-
lies to a large extent upon the information fur-
nished by the affected business to substantiate its
claim of confidentiality. The EPA legal office may
be unable to verify the accuracy of much of the
information submitted by the affected business.
(b) If the EPA legal office makes a final con-
fidentiality determination under this subpart that
22
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§2.301
certain business information is entitled to con-
fidential treatment, and EPA is sued by a requester
under the Freedom of Information Act for disclo-
sure of that information, EPA will:
(1) Notify each affected business of the suit
within 10 days after service of the complaint upon
EPA;
(2) Where necessary to preparation of EPA's
defense, call upon each affected business to fur-
nish assistance; and
(3) Not oppose a motion by any affected busi-
ness to intervene as a party to the suit under rule
24(b) of the Federal Rules of Civil Procedure.
(c) EPA will defend its final confidentiality de-
termination, but EPA expects the affected business
to cooperate to the fullest extent possible in this
defense.
[43 FR 40001, Sept. 8, 1978]
§2.215 Confidentiality agreements.
(a) No EPA officer, employee, contractor, or
subcontractor shall enter into any agreement with
any affected business to keep business information
confidential unless such agreement is consistent
with this subpart. No EPA officer, employee, con-
tractor, or subcontractor shall promise any affected
business that business information will be kept
confidential unless the promise is consistent with
this subpart.
(b) If an EPA office has requested information
from a State, local, or Federal agency and the
agency refuses to furnish the information to EPA
because the information is or may constitute con-
fidential business information, the EPA office may
enter into an agreement with the agency to keep
the information confidential, notwithstanding the
provisions of this subpart. However, no such
agreement shall be made unless the General Coun-
sel determines that the agreement is necessary and
proper.
(c) To determine that an agreement proposed
under paragraph (b) of this section is necessary,
the General Counsel must find:
(1) The EPA office requesting the information
needs the information to perform its functions;
(2) The agency will not furnish the information
to EPA without an agreement by EPA to keep the
information confidential; and
(3) Either:
(i) EPA has no statutory power to compel sub-
mission of the information directly from the af-
fected business, or
(ii) While EPA has statutory power to compel
submission of the information directly from the af-
fected business, compelling submission of the in-
formation directly from the business would—
(A) Require time in excess of that available to
the EPA office to perform its necessary work with
the information,
(B) Duplicate information already collected by
the other agency and overly burden the affected
business, or
(C) Overly burden the resources of EPA.
(d) To determine that an agreement proposed
under paragraph (b) of this section is proper, the
General Counsel must find that the agreement
states—
(1) The purpose for which the information is re-
quired by EPA;
(2) The conditions under which the agency will
furnish the information to EPA;
(3) The information subject to the agreement;
(4) That the agreement does not cover informa-
tion acquired by EPA from another source;
(5) The manner in which EPA will treat the in-
formation; and
(6) That EPA will treat the information in ac-
cordance with the agreement subject to an order of
a Federal court to disclose the information.
(e) EPA will treat any information acquired pur-
suant to an agreement under paragraph (b) of this
section in accordance with the procedures of this
subpart except where the agreement specifies oth-
erwise.
[43 FR 40001, Sept. 8, 1978]
§§2.216-2.300 [Reserved]
§2.301 Special rules governing certain
information obtained under the
Clean Air Act.
(a) Definitions. For the purpose of this section:
(1) Act means the Clean Air Act, as amended,
42U.S.C. 7401 et seq.
(2)(i) Emission data means, with reference to
any source of emission of any substance into the
air—
(A) Information necessary to determine the
identity, amount, frequency, concentration, or
other characteristics (to the extent related to air
quality) of any emission which has been emitted
by the source (or of any pollutant resulting from
any emission by the source), or any combination
of the foregoing;
(B) Information necessary to determine the
identity, amount, frequency, concentration, or
other characteristics (to the extent related to air
quality) of the emissions which, under an applica-
ble standard or limitation, the source was author-
ized to emit (including, to the extent necessary for
such purposes, a description of the manner or rate
of operation of the source); and
(C) A general description of the location and/or
nature of the source to the extent necessary to
identify the source and to distinguish it from other
sources (including, to the extent necessary for such
purposes, a description of the device, installation,
or operation constituting the source).
23
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§2.301
(ii) Notwithstanding paragraph (a)(2)(i) of this
section, the following information shall be consid-
ered to be emission data only to the extent nec-
essary to allow EPA to disclose publicly that a
source is (or is not) in compliance with an appli-
cable standard or limitation, or to allow EPA to
demonstrate the feasibility, practicability, or attain-
ability (or lack thereof) of an existing or proposed
standard or limitation:
(A) Information concerning research, or the re-
sults of research, on any project, method, device
or installation (or any component thereof) which
was produced, developed, installed, and used only
for research purposes; and
(B) Information concerning any product, meth-
od, device, or installation (or any component
thereof) designed and intended to be marketed or
used commercially but not yet so marketed or
used.
(3) Standard or limitation means any emission
standard or limitation established or publicly pro-
posed pursuant to the Act or pursuant to any regu-
lation under the Act.
(4) Proceeding means any rulemaking, adjudica-
tion, or licensing conducted by EPA under the Act
or under regulations which implement the Act, ex-
cept for determinations under this subpart.
(5) Manufacturer has the meaning given it in
section 216(1) of the Act, 42 U.S.C. 7550(1).
(b) Applicability. (1) This section applies to
business information which was—
(i) Provided or obtained under section 114 of
the Act, 42 U.S.C. 7414, by the owner or operator
of any stationary source, for the purpose (A) of
developing or assisting in the development of any
implementation plan under section 110 or lll(d)
of the Act, 42 U.S.C. 7410, 7411(d), any standard
of performance under section 111 of the Act, 42
U.S.C. 7411, or any emission standard under sec-
tion 112 of the Act, 42 U.S.C. 7412, (B) of deter-
mining whether any person is in violation of any
such standard or any requirement of such a plan,
or (C) of carrying out any provision of the Act
(except a provision of Part II of the Act with re-
spect to a manufacturer of new motor vehicles or
new motor vehicle engines);
(ii) Provided or obtained under section 208 of
the Act, 42 U.S.C. 7542, for the purpose of ena-
bling the Administrator to determine whether a
manufacturer has acted or is acting in compliance
with the Act and regulations under the Act, or pro-
vided or obtained under section 206(c) of the Act,
42 U.S.C. 7525(c); or
(iii) Provided in response to a subpoena for the
production of papers, books, or documents issued
under the authority of section 307(a) of the Act,
42 U.S.C. 7607(a).
(2) Information will be considered to have been
provided or obtained under section 114 of the Act
if it was provided in response to a request by EPA
made for any of the purposes stated in section
114, or if its submission could have been required
under section 114, regardless of whether section
114 was cited as the authority for any request for
the information, whether an order to provide the
information was issued under section 113(a) of the
Act, 42 U.S.C. 7413(a), whether an action was
brought under section 113(b) of the Act, 42 U.S.C.
7413(b), or whether the information was provided
directly to EPA or through some third person.
(3) Information will be considered to have been
provided or obtained under section 208 of the Act
if it was provided in response to a request by EPA
made for any of the purposes stated in section
208, or if its submission could have been required
under section 208, regardless of whether section
208 was cited as the authority for any request for
the information, whether an action was brought
under section 204 of the Act, 42 U.S.C. 7523, or
whether the information was provided directly to
EPA or through some third person.
(4) Information will be considered to have been
provided or obtained under section 206(c) of the
Act if it was provided in response to a request by
EPA made for any of the purposes stated in sec-
tion 206(c), or if its submission could have been
required under section 206(c) regardless of wheth-
er section 206(c) was cited as authority for any re-
quest for the information, whether an action was
brought under section 204 of the Act, 42 U.S.C.
7523, or whether the information was provided di-
rectly to EPA or through some third person.
(5) Information will be considered to have been
provided or obtained under section 307(a) of the
Act if it was provided in response to a subpoena
issued under section 307(a), or if its production
could have been required by subpoena under sec-
tion 307(a), regardless of whether section 307(a)
was cited as the authority for any request for the
information, whether a subpoena was issued by
EPA, whether a court issued an order under sec-
tion 307(a), or whether the information was pro-
vided directly to EPA or through some third per-
son.
(c) Basic rules which apply without change.
Sections 2.201 through 2.207, §2.209 and
§§2.211 through 2.215 apply without change to
information to which this section applies.
(d) [Reserved]
(e) Substantive criteria for use in confidentiality
determinations. Section 2.208 applies to informa-
tion to which this section applies, except that in-
formation which is emission data, a standard or
limitation, or is collected pursuant to section
211(b)(2)(A) of the Act is not eligible for con-
fidential treatment. No information to which this
section applies is voluntarily submitted informa-
tion.
24
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§2.301
(f) Availability of information not entitled to
confidential treatment. Section 2.210 does not
apply to information to which this section applies.
Emission data, standards or limitations, and any
other information provided under section 114 or
208 of the Act which is determined under this
subpart not to be entitled to confidential treatment,
shall be available to the public notwithstanding
any other provision of this part. Emission data and
standards or limitations provided in response to a
subpoena issued under section 307(a) of the Act
shall be available to the public notwithstanding
any other provision of this part. Information (other
than emission data and standards or limitations)
provided in response to a subpoena issued under
section 307(a) of the Act, which is determined
under this subpart not to be entitled to confidential
treatment, shall be available to the public, unless
EPA determines that the information is exempt
from mandatory disclosure under 5 U.S.C. 552(b)
for reasons other than reasons of business con-
fidentiality and cannot or should not be made
available to the public.
(g) Disclosure of information relevant to a pro-
ceeding. (1) Under sections 114, 208 and 307 of
the Act, any information to which this section ap-
plies may be released by EPA because of the rel-
evance of the information to a proceeding, not-
withstanding the fact that the information other-
wise might be entitled to confidential treatment
under this subpart. Release of information because
of its relevance to a proceeding shall be made
only in accordance with this paragraph (g).
(2) In connection with any proceeding other
than a proceeding involving a decision by a pre-
siding officer after an evidentiary or adjudicatory
hearing, information to which this section applies
which may be entitled to confidential treatment
may be made available to the public under this
paragraph (g)(2). No information shall be made
available to the public under this paragraph (g)(2)
until any affected business has been informed that
EPA is considering making the information avail-
able to the public under this paragraph (g)(2) in
connection with an identified proceeding, and has
afforded the business a reasonable period for com-
ment (such notice and opportunity to comment
may be afforded in connection with the notice pre-
scribed by §2.204(d)(l) and §2.204(e)). Informa-
tion may be made available to the public under
this paragraph (g)(2) only if, after consideration of
any timely comments submitted by the business,
the General Counsel determines that the informa-
tion is relevant to the subject of the proceeding
and the EPA office conducting the proceeding de-
termines that the public interest would be served
by making the information available to the public.
Any affected business shall be given at least 5
days' notice by the General Counsel prior to mak-
ing the information available to the public.
(3) In connection with any proceeding involving
a decision by a presiding officer after an evi-
dentiary or adjudicatory hearing, information to
which this section applies which may be entitled
to confidential treatment may be made available to
the public, or to one or more parties of record to
the proceeding, upon EPA's initiative, under this
paragraph (g)(3). An EPA office proposing disclo-
sure of information under this paragraph (g)(3),
shall so notify the presiding officer in writing.
Upon receipt of such a notification, the presiding
officer shall notify each affected business that dis-
closure under this paragraph (g)(3) has been pro-
posed, and shall afford each such business a pe-
riod for comment found by the presiding officer to
be reasonable under the circumstances. Informa-
tion may be disclosed under this paragraph (g)(3)
only if, after consideration of any timely com-
ments submitted by the business, the EPA office
determines in writing that, for reasons directly as-
sociated with the conduct of the proceeding, the
contemplated disclosure would serve the public in-
terest, and the presiding officer determines in writ-
ing that the information is relevant to a matter in
controversy in the proceeding. The presiding offi-
cer may condition disclosure of the information to
a party of record on the making of such protective
arrangements and commitments as he finds to be
warranted. Disclosure to one or more parties of
record, under protective arrangements or commit-
ments, shall not, of itself, affect the eligibility of
information for confidential treatment under the
other provisions of this subpart. Any affected busi-
ness shall be given at least 5 days notice by the
presiding officer prior to making the information
available to the public or to one or more of the
parties of record to the proceeding.
(4) In connection with any proceeding involving
a decision by a presiding officer after an evi-
dentiary or adjudicatory hearing, information to
which this section applies may be made available
to one or more parties of record to the proceeding,
upon request of a party, under this paragraph
(g)(4). A party of record seeking disclosure of in-
formation shall direct his request to the presiding
officer. Upon receipt of such a request, the presid-
ing officer shall notify each affected business that
disclosure under this paragraph (g)(4) has been re-
quested, and shall afford each such business a pe-
riod for comment found by the presiding officer to
be reasonable under the circumstances. Informa-
tion may be disclosed to a party of record under
this paragraph (g)(4) only if, after consideration of
any timely comments submitted by the business,
the presiding officer determines in writing that (i)
the party of record has satisfactorily shown that
with respect to a significant matter which is in
25
-------
§2.301
controversy in the proceeding, the party's ability
to participate effectively in the proceeding will be
significantly impaired unless the information is
disclosed to him, and (ii) any harm to an affected
business that would result from the disclosure is
likely to be outweighed by the benefit to the pro-
ceeding and to the public interest that would result
from the disclosure. The presiding officer may
condition disclosure of the information to a party
of record on the making of such protective ar-
rangements and commitments as he finds to be
warranted. Disclosure to one or more parties of
record, under protective arrangements or commit-
ments, shall not, of itself, affect the eligibility of
information to confidential treatment under the
other provisions of this subpart. Any affected busi-
ness shall be given at least 5 days notice by the
presiding officer prior to making the information
available to one or more of the parties of record
to the proceeding.
(h) Disclosure to authorized representatives. (1)
Under sections 114, 208 and 307(a) of the Act,
EPA possesses authority to disclose to any author-
ized representative of the United States any infor-
mation to which this section applies, notwithstand-
ing the fact that the information might otherwise
be entitled to confidential treatment under this
subpart. Such authority may be exercised only in
accordance with paragraph (h) (2) or (3) of this
section.
(2)(i) A person under contract or subcontract to
the United States government to perform work in
support of EPA in connection with the Act or reg-
ulations which implement the Act may be consid-
ered an authorized representative of the United
States for purposes of this paragraph (h). For pur-
poses of this section, the term "contract" includes
grants and cooperative agreements under the Envi-
ronmental Programs Assistance Act of 1984 (Pub.
L. 98-313), and the term "contractor" includes
grantees and cooperators under the Environmental
Programs Assistance Act of 1984. Subject to the
limitations in this paragraph (h)(2), information to
which this section applies may be disclosed:
(A) To a contractor or subcontractor with EPA,
if the EPA program office managing the contract
first determines in writing that such disclosure is
necessary in order that the contractor or sub-
contractor may carry out the work required by the
contract or subcontract; or
(B) To a contractor or subcontractor with an
agency other than EPA, if the EPA program office
which provides the information to that agency,
contractor, or subcontractor first determines in
writing, in consultation with the General Counsel,
that such disclosure is necessary in order that the
contractor or subcontractor may carry out the work
required by the contract or subcontract.
(ii) No information shall be disclosed under this
paragraph (h)(2), unless this contract or sub-
contract in question provides:
(A) That the contractor or subcontractor and the
contractor's or subcontractor's employees shall use
the information only for the purpose of carrying
out the work required by the contract or sub-
contract, shall refrain from disclosing the informa-
tion to anyone other than EPA without the prior
written approval of each affected business or of an
EPA legal office and shall return to EPA all cop-
ies of the information (and any abstracts or ex-
tracts therefrom) upon request by the EPA pro-
gram office, whenever the information is no longer
required by the contractor or subcontractor for the
performance of the work required under the con-
tract or subcontract, or upon completion of the
contract or subcontract (where the information was
provided to the contractor or subcontractor by an
agency other than EPA, the contractor may dis-
close or return the information to that agency);
(B) That the contractor or subcontractor shall
obtain a written agreement to honor such terms of
the contract or subcontract from each of the con-
tractor's or subcontractor's employees who will
have access to the information, before such em-
ployee is allowed such access; and
(C) That the contractor or subcontractor ac-
knowledges and agrees that the contract or sub-
contract provisions concerning the use and disclo-
sure of business information are included for the
benefit of, and shall be enforceable by, both the
United States government and any affected busi-
ness having an interest in information concerning
it supplied to the contractor or subcontractor by
the United States government under the contract or
subcontract.
(iii) No information shall be disclosed under
this paragraph (h)(2) until each affected business
has been furnished notice of the contemplated dis-
closure by the EPA program office and has been
afforded a period found reasonable by that office
(not less than 5 working days) to submit its com-
ments. Such notice shall include a description of
the information to be disclosed, the identity of the
contractor or subcontractor, the contract or sub-
contract number, if any, and the purposes to be
served by the disclosure.
(iv) The EPA program office shall prepare a
record of each disclosure under this paragraph
(h)(2), showing the contractor or subcontractor, the
contract or subcontract number, the information
disclosed, the date(s) of disclosure, and each af-
fected business. The EPA program office shall
maintain the record of disclosure and the deter-
mination of necessity prepared under paragraph
(h)(2)(i) of this section for a period of not less
than 36 months after the date of the disclosure.
26
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§2.302
(3) A state or local governmental agency which
has duties or responsibilities under the Act, or
under regulations which implement the Act, may
be considered an authorized representative of the
United States for purposes of this paragraph (h).
Information to which this section applies may be
furnished to such an agency at the agency's writ-
ten request, but only if—
(i) The agency has first furnished to the EPA
office having custody of the information a written
opinion from the agency's chief legal officer or
counsel stating that under applicable state or local
law the agency has the authority to compel a busi-
ness which possesses such information to disclose
it to the agency, or
(ii) Each affected business is informed of those
disclosures under this paragraph (h)(3) which per-
tain to it, and the agency has shown to the satis-
faction of an EPA legal office that the agency's
use and disclosure of such information will be
governed by state or local law and procedures
which will provide adequate protection to the in-
terests of affected businesses.
[41 FR 36902, Sept. 1, 1976, as amended at 43 FR
40002, Sept. 8, 1978; 43 FR 42251, Sept. 20, 1978; 50
FR 51662, Dec. 18, 1985; 58 FR 461, Jan. 5, 1993; 58
FR 5061, Jan 19, 1993; 58 FR 7189, Feb. 5, 1993]
§ 2.302 Special rules governing certain
information obtained under the
Clean Water Act.
(a) Definitions. For the purposes of this section:
(1) Act means the Clean Water Act, as amend-
ed, 33 U.S.C. 1251 et seq.
(2)(i) Effluent data means, with reference to any
source of discharge of any pollutant (as that term
is defined in section 502(6) of the Act, 33 U.S.C.
1362 (6))—
(A) Information necessary to determine the
identity, amount, frequency, concentration, tem-
perature, or other characteristics (to the extent re-
lated to water quality) of any pollutant which has
been discharged by the source (or of any pollutant
resulting from any discharge from the source), or
any combination of the foregoing;
(B) Information necessary to determine the
identity, amount, frequency, concentration, tem-
perature, or other characteristics (to the extent re-
lated to water quality) of the pollutants which,
under an applicable standard or limitation, the
source was authorized to discharge (including, to
the extent necessary for such purpose, a descrip-
tion of the manner or rate of operation of the
source); and
(C) A general description of the location and/or
nature of the source to the extent necessary to
identify the source and to distinguish it from other
sources (including, to the extent necessary for such
purposes, a description of the device, installation,
or operation constituting the source).
(ii) Notwithstanding paragraph (a)(2)(i) of this
section, the following information shall be consid-
ered to be effluent data only to the extent nec-
essary to allow EPA to disclose publicly that a
source is (or is not) in compliance with an appli-
cable standard or limitation, or to allow EPA to
demonstrate the feasibility, practicability, or attain-
ability (or lack thereof) of an existing or proposed
standard or limitation:
(A) Information concerning research, or the re-
sults of research, on any product, method, device,
or installation (or any component thereof) which
was produced, developed, installed, and used only
for research purposes; and
(B) Information concerning any product, meth-
od, device, or installation (or any component
thereof) designed and intended to be marketed or
used commercially but not yet so marketed or
used.
(3) Standard or limitation means any prohibi-
tion, any effluent limitation, or any toxic, pre-
treatment or new source performance standard es-
tablished or publicly proposed pursuant to the Act
or pursuant to regulations under the Act, including
limitations or prohibitions in a permit issued or
proposed by EPA or by a State under section 402
of the Act, 33 U.S.C. 1342.
(4) Proceeding means any rulemaking, adjudica-
tion, or licensing conducted by EPA under the Act
or under regulations which implement the Act, ex-
cept for determinations under this part.
(b) Applicability. (1) This section applies only
to business information—
(i) Provided to or obtained by EPA under sec-
tion 308 of the Act, 33 U.S.C. 1318, by or from
the owner or operator of any point source, for the
purpose of carrying out the objective of the Act
(including but not limited to developing or assist-
ing in the development of any standard or limita-
tion under the Act, or determining whether any
person is in violation of any such standard or limi-
tation); or
(ii) Provided to or obtained by EPA under sec-
tion 509(a) of the Act, 33 U.S.C. 1369(a).
(2) Information will be considered to have been
provided or obtained under section 308 of the Act
if it was provided in response to a request by EPA
made for any of the purposes stated in section
308, or if its submission could have been required
under section 308, regardless of whether section
308 was cited as the authority for any request for
the information, whether an order to provide the
information was issued under section 309(a)(3) of
the Act, 33 U.S.C. 1319(a)(3), whether a civil ac-
tion was brought under section 309(b) of the Act,
33 U.S.C. 1319(b), and whether the information
27
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§2.303
was provided directly to EPA or through some
third person.
(3) Information will be considered to have been
provided or obtained under section 509(a) of the
Act if it was provided in response to a subpoena
issued under section 509(a), or if its production
could have been required by subpoena under sec-
tion 509(a), regardless of whether section 509(a)
was cited as the authority for any request for the
information, whether a subpoena was issued by
EPA, whether a court issued an order under sec-
tion 307(a), or whether the information was pro-
vided directly to EPA or through some third per-
son.
(4) This section specifically does not apply to
information obtained under section 310(d) or
312(g)(3) of the Act, 33 U.S.C. 1320(d),
1322(g)(3).
(c) Basic rules which apply without change.
Sections 2.201 through 2.207, 2.209, 2.211
through 2.215 apply without change to information
to which this section applies.
(d) [Reserved]
(e) Substantive criteria for use in confidentiality
determinations. Section 2.208 applies to informa-
tion to which this section applies, except that in-
formation which is effluent data or a standard or
limitation is not eligible for confidential treatment.
No information to which this section applies is
voluntarily submitted information.
(f) Availability of information not entitled to
confidential treatment. Section 2.210 does not
apply to information to which this section applies.
Effluent data, standards or limitations, and any
other information provided or obtained under sec-
tion 308 of the Act which is determined under this
subpart not to be entitled to confidential treatment,
shall be available to the public notwithstanding
any other provision of this part. Effluent data and
standards or limitations provided in response to a
subpoena issued under section 509(a) of the Act
shall be available to the public notwithstanding
any other provision of this part. Information (other
than effluent data and standards or limitations)
provided in response to a subpoena issued under
section 509(a) of the Act, which is determined
under this subpart not to be entitled to confidential
treatment, shall be available to the public, unless
EPA determines that the information is exempt
from mandatory disclosure under 5 U.S.C. 552(b)
for reasons other than reasons of business con-
fidentiality and cannot or should not be made
available to the public.
(g) Disclosure of information relevant to a pro-
ceeding. (1) Under sections 308 and 509(a) of the
Act, any information to which this section applies
may be released by EPA because of the relevance
of the information to a proceeding, notwithstand-
ing the fact that the information otherwise might
be entitled to confidential treatment under this
subpart. Release of information to which this sec-
tion applies because of its relevance to a proceed-
ing shall be made only in accordance with this
paragraph (g).
(2)-(4) The provisions of §2.301(g) (2), (3),
and (4) are incorporated by reference as para-
graphs (g) (2), (3), and (4), respectively of this
section.
(h) Disclosure to authorized representatives. (1)
Under sections 308 and 509(a) of the Act, EPA
possesses authority to disclose to any authorized
representative of the United States any information
to which this section applies, notwithstanding the
fact that the information might otherwise be enti-
tled to confidential treatment under this subpart.
Such authority may be exercised only in accord-
ance with paragraph (h)(2) or (h)(3) of this sec-
tion.
(2)-(3) The provisions of §2.301(h) (2) and (3)
are incorporated by reference as paragraphs (h) (2)
and (3), respectively, of this section.
[41 FR 36902, Sept. 1, 1976, as amended at 43 FR
40003, Sept. 8, 1978]
§ 2.303 Special rules governing certain
information obtained under the
Noise Control Act of 1972.
(a) Definitions. For the purposes of this section:
(1) Act means the Noise Control Act of 1972,
42 U.S.C. 4901 et seq.
(2) Manufacturer has the meaning given it in 42
U.S.C. 4902(6).
(3) Product has the meaning given it in 42
U.S.C. 4902(3).
(4) Proceeding means any rulemaking, adjudica-
tion, or licensing conducted by EPA under the Act
or under regulations which implement the Act, ex-
cept for determinations under this subpart.
(b) Applicability. This section applies only to in-
formation provided to or obtained by EPA under
section 13 of the Act, 42 U.S.C. 4912, by or from
any manufacturer of any product to which regula-
tions under section 6 or 8 of the Act (42 U.S.C.
4905, 4907) apply. Information will be deemed to
have been provided or obtained under section 13
of the Act, if it was provided in response to a re-
quest by EPA made for the purpose of enabling
EPA to determine whether the manufacturer has
acted or is acting in compliance with the Act, or
if its submission could have been required under
section 13 of the Act, regardless of whether sec-
tion 13 was cited as authority for the request,
whether an order to provide such information was
issued under section ll(d) of the Act, 42 U.S.C.
4910(d), and whether the information was pro-
vided directly to EPA by the manufacturer or
through some third person.
28
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§2.304
(c) Basic rules which apply without change.
Sections 2.201 through 2.207 and 2.209 through
2.215 apply without change to information to
which this section applies.
(d) [Reserved]
(e) Substantive criteria for use in confidentiality
determinations. Section 2.208 applies without
change to information to which this section ap-
plies; however, no information to which this sec-
tion applies is voluntarily submitted information.
(f) [Reserved]
(g) Disclosure of information relevant to a pro-
ceeding. (1) Under section 13 of the Act, any in-
formation to which this section applies may be re-
leased by EPA because of its relevance to a matter
in controversy in a proceeding, notwithstanding
the fact that the information otherwise might be
entitled to confidential treatment under this sub-
part. Release of information because of its rel-
evance to a proceeding shall be made only in ac-
cordance with this paragraph (g).
(2)-(4) The provisions of §2.301(g) (2), (3),
and (4) are incorporated by reference as para-
graphs (g) (2), (3), and (4), respectively, of this
section.
[41 FR 36902, Sept. 1, 1976, as amended at 43 FR
40003, Sept. 8, 1978]
§2.304 Special rules governing certain
information obtained under the
Safe Drinking Water Act.
(a) Definitions. For the purposes of this section:
(1) Act means the Safe Drinking Water Act, 42
U.S.C. 300f et seq.
(2) Contaminant means any physical, chemical,
biological, or radiological substance or matter in
water.
(3) Proceeding means any rulemaking, adjudica-
tion, or licensing process conducted by EPA under
the Act or under regulations which implement the
Act, except for any determination under this part.
(b) Applicability. (1) This section applies only
to information—
(i) Which was provided to or obtained by EPA
pursuant to a requirement of a regulation which
was issued by EPA under the Act for the purpose
of—
(A) Assisting the Administrator in establishing
regulations under the Act;
(B) Determining whether the person providing
the information has acted or is acting in compli-
ance with the Act; or
(C) Administering any program of financial as-
sistance under the Act; and
(ii) Which was provided by a person—
(A) Who is a supplier of water, as defined in
section 1401(5) of the Act, 42 U.S.C. 300f(5);
(B) Who is or may be subject to a primary
drinking water regulation under section 1412 of
the Act, 42 U.S.C. 300g-l;
(C) Who is or may be subject to an applicable
underground injection control program, as defined
in section 1422(d) of the Act, 42 U.S.C.300h-l(d);
(D) Who is or may be subject to the permit re-
quirements of section 1424(b) of the Act, 42
U.S.C. 300h-3(b);
(E) Who is or may be subject to an order issued
under section 1441(c) of the Act, 42 U.S.C.
300j(c); or
(F) Who is a grantee, as defined in section
1445(e) of the Act, 42 U.S.C. 300j-4(e).
(2) This section applies to any information
which is described by paragraph (b)(l) of this sec-
tion if it was provided in response to a request by
EPA or its authorized representative (or by a State
agency administering any program under the Act)
made for any purpose stated in paragraph (b)(l) of
this section, or if its submission could have been
required under section 1445 of the Act, 42 U.S.C.
300J-4, regardless of whether such section was
cited in any request for the information, or wheth-
er the information was provided directly to EPA
or through some third person.
(c) Basic rules which apply without change.
Sections 2.201 through 2.207, 2.209, and 2.211
through 2.215 apply without change to information
to which this section applies.
(d) [Reserved]
(e) Substantive criteria for use in confidentiality
determinations. Section 2.208 applies to informa-
tion to which this section applies, except that in-
formation which deals with the existence, absence,
or level of contaminants in drinking water is not
eligible for confidential treatment. No information
to which this section applies is voluntarily submit-
ted information.
(f) Nondisclosure for reasons other than busi-
ness confidentiality or where disclosure is prohib-
ited by other statute. Section 2.210 applies to in-
formation to which this section applies, except that
information which deals with the existence, ab-
sence, or level of contaminants in drinking water
shall be available to the public notwithstanding
any other provision of this part.
(g) Disclosure of information relevant to a pro-
ceeding. (1) Under section 1445(d) of the Act, any
information to which this section applies may be
released by EPA because of the relevance of the
information to a proceeding, notwithstanding the
fact that the information otherwise might be enti-
tled to confidential treatment under this subpart.
Release of information to which this section ap-
plies because of its relevance to a proceeding shall
be made only in accordance with this paragraph
(g).
29
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§2.305
(2)-(4) The provisions of §2.301(g) (2), (3), (4)
are incorporated by reference as paragraphs (g)
(2), (3), and (4), respectively, of this section.
(h) Disclosure to authorized representatives. (1)
Under section 1445(d) of the Act, EPA possesses
authority to disclose to any authorized representa-
tive of the United States any information to which
this section applies, notwithstanding the fact that
the information otherwise might be entitled to con-
fidential treatment under this subpart. Such author-
ity may be exercised only in accordance with
paragraph (h)(2) or (h)(3) of this section.
(2)-(3) The provisions of §2.301(h) (2) and (3)
are incorporated by reference as paragraphs (h) (2)
and (3), respectively, of this section.
[41 FR 36902, Sept. 1, 1976, as amended at 43 FR
40003, Sept. 8, 1978]
§2.305 Special rules governing certain
information obtained under the
Solid Waste Disposal Act, as amend-
ed.
(a) Definitions. For purposes of this section:
(1) Act means the Solid Waste Disposal Act, as
amended, including amendments made by the Re-
source Conservation and Recovery Act of 1976, as
amended, 42 U.S.C. 6901 et seq.
(2) Person has the meaning given it in section
1004(15) of the Act, 42 U.S.C. 6903(15).
(3) Hazardous waste has the meaning given it
in section 1004(5) of the Act, 42 U.S.C. 6903(5).
(4) Proceeding means any rulemaking, adjudica-
tion, or licensing conducted by EPA under the Act
or under regulations which implement the Act in-
cluding the issuance of administrative orders and
the approval or disapproval of plans (e.g. closure
plans) submitted by persons subject to regulation
under the Act, but not including determinations
under this subpart.
(b) Applicability. This section applies to infor-
mation provided to or obtained by EPA under sec-
tion 3001(b)(3)(B), 3007, or 9005 of the Act, 42
U.S.C 6921(b)(3)(B), 6927, or 6995. Information
will be considered to have been provided or ob-
tained under sections 3001(b)(3)(B), 3007, or 9005
of the Act if it was provided in response to a re-
quest from EDA made for any of the purposes
stated in the Act or if its submission could have
been required under those provisions of the Act
regardless of whether a specific section was cited
as the authority for any request for the information
or whether the information was provide directly to
EPA or through some third person.
(c) Basic rules which apply without change.
Sections 2.201 through 2.207 and 2.209 through
2.215 apply without change to information to
which this section applies.
(d) [Reserved]
(e) Substantive criteria for use in confidentiality
determinations. Section 2.208 applies without
change to information to which this section ap-
plies; however, no information to which this sec-
tion applies is voluntarily submitted information.
(f) [Reserved]
(g) Disclosure of information relevant in a pro-
ceeding. (1) Under sections 3007(b) and 9005(b)
of the Act (42 U.S.C. 6927(b) and 6995(b)), any
information to which this section applies may be
disclosed by EPA because of the relevance of the
information in a proceeding under the Act, not-
withstanding the fact that the information other-
wise might be entitled to confidential treatment
under this subpart. Disclosure of information to
which this section applies because of its relevance
in a proceeding shall be made only in accordance
with this paragraph (g).
(2)-(4) The provisions of §2.301(g) (2), (3),
and (4) are incorporated by reference as para-
graphs (g) (2), (3), and (4), respectively, of this
section.
(h) Disclosure to authorized representatives. (1)
Under sections 3001(b)(3)(B), 3007(b), and
9005(b) of the Act (42 U.S.C. 6921(b)(3)(B),
6927(b), and 6995(b)), EPA possesses authority to
disclose to any authorized representative of the
United States any information to which this sec-
tion applies, notwithstanding the fact that the in-
formation might otherwise be entitled to confiden-
tial treatment under this subpart. Such authority
may be exercised only in accordance with para-
graph (h)(2) or (h)(3) of this section.
(2)-(3) The provisions of §2.301(h) (2) and (3)
are incorporated by reference as paragraphs (h) (2)
and (3), respectively, of this section.
(4) At the time any information is furnished to
a contractor, subcontractor, or state or local gov-
ernment agency under this paragraph (h), the EPA
office furnishing the information to the contractor,
subcontractor, or state or local government agency
shall notify the contractor, subcontractor, or state
or local government agency that the information
may be entitled to confidential treatment and that
any knowing and willful disclosure of the informa-
tion may subject the contractor, subcontractor, or
state or local government agency and its employ-
ees to penalties in section 3001(b)(3)(B),
3007(b)(2), or 9005(b)(l) of the Act (42 U.S.C.
6921(b)(3)(B), 6927(b), or 6995(b)).
[43 FR 40003, Sept. 8, 1978, as amended at 50 FR
51662, Dec. 18, 1985]
§ 2.306 Special rules governing certain
information obtained under the
Toxic Substances Control Act.
(a) Definitions. For the purposes of this section:
(1) Act means the Toxic Substances Control
Act, 15 U.S.C. 2601 et seq.
30
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§2.306
(2) Chemical substance has the meaning given
it in section 3(2) of the Act, 15 U.S.C. 2602(2).
(3)(i) Health and safety data means the infor-
mation described in paragraphs (a)(3)(i) (A), (B),
and (C) of this section with respect to any chemi-
cal substance or mixture offered for commercial
distribution (including for test marketing purposes
and for use in research and development), any
chemical substance included on the inventory of
chemical substances under section 8 of the Act (15
U.S.C. 2607), or any chemical substance or mix-
ture for which testing is required under section 4
of the Act (15 U.S.C. 2603) or for which notifica-
tion is required under section 5 of the Act (15
U.S.C. 2604).
(A) Any study of any effect of a chemical sub-
stance or mixture on health, on the environment,
or on both, including underlying data and epide-
miological studies; studies of occupational expo-
sure to a chemical substance or mixture; and toxi-
cological, clinical, and ecological studies of a
chemical substance or mixture;
(B) Any test performed under the Act; and
(C) Any data reported to, or otherwise obtained
by, EPA from a study described in paragraph
(a)(3)(i)(A) of this section or a test described in
paragraph (a)(3)(i)(B) of this section.
(ii) Notwithstanding paragraph (a)(3)(i) of this
section, no information shall be considered to be
health and safety data if disclosure of the informa-
tion would—
(A) In the case of a chemical substance or mix-
ture, disclose processes used in the manufacturing
or processing the chemical substance or mixture
or,
(B) In the case of a mixture, disclose the por-
tion of the mixture comprised by any of the chem-
ical substances in the mixture.
(4) [Reserved]
(5) Mixture has the meaning given it in section
3(8) of the Act, 15 U.S.C. 2602(8).
(6) Proceeding means any rulemaking, adjudica-
tion, or licensing conducted by EPA under the Act
or under regulations which implement the Act, ex-
cept for determinations under this subpart.
(b) Applicability. This section applies to all in-
formation submitted to EPA for the purpose of
satisfying some requirement or condition of the
Act or of regulations which implement the Act, in-
cluding information originally submitted to EPA
for some other purpose and either relied upon to
avoid some requirement or condition of the Act or
incorporated into a submission in order to satisfy
some requirement or condition of the Act or of
regulations which implement the Act. Information
will be considered to have been provided under
the Act if the information could have been ob-
tained under authority of the Act, whether the Act
was cited as authority or not, and whether the in-
formation was provided directly to EPA or
through some third person.
(c) Basic rules which apply without change.
Sections 2.201 through 2.203, 2.206, 2.207, and
2.210 through 2.215 apply without change to in-
formation to which this section applies.
(d) Initial action by EPA office. Section 2.204
applies to information to which this section ap-
plies, except that the provisions of paragraph
(e)(3) of this section regarding the time allowed
for seeking judicial review shall be reflected in
any notice furnished to a business under
§2.204(d)(2).
(e) Final confidentiality determination by EPA
legal office. Section 2.205 applies to information
to which this section applies, except that—
(1) Notwithstanding §2.205(i), the General
Counsel (or his designee), rather than the regional
counsel, shall make the determinations and take
the actions required by §2.205;
(2) In addition to the statement prescribed by
the second sentence of § 2.205(f)(2), the notice of
denial of a business confidentiality claim shall
state that under section 20(a) of the Act, 15 U.S.C.
2619, the business may commence an action in an
appropriate Federal district court to prevent disclo-
sure.
(3) The following sentence is substituted for the
third sentence of §2.205(f)(2): "With respect to
EPA's implementation of the determination, the
notice shall state that (subject to § 2.210) EPA will
make the information available to the public on
the thirty-first (31st) calendar day after the date of
the business' receipt of the written notice (or on
such later date as is established in lieu thereof
under paragraph (f)(3) of this section), unless the
EPA legal office has first been notified of the
business' commencement of an action in a Federal
court to obtain judicial review of the determination
and to obtain preliminary injunctive relief against
disclosure."; and
(4) Notwithstanding §2.205(g), the 31 calendar
day period prescribed by § 2.205(f)(2), as modified
by paragraph (e)(3) of this section, shall not be
shortened without the consent of the business.
(f) [Reserved]
(g) Substantive criteria for use in confidentiality
determinations. Section 2.208 applies without
change to information to which this section ap-
plies, except that health and safety data are not eli-
gible for confidential treatment. No information to
which this section applies is voluntarily submitted
information.
(h) Disclosure in special circumstances. Section
2.209 applies to information to which this section
applies, except that the following two additional
provisions apply to § 2.209(c):
(1) The official purpose for which the informa-
tion is needed must be in connection with the
31
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§2.306
agency's duties under any law for protection of
health or the environment or for specific law en-
forcement purposes; and
(2) EPA notifies the other agency that the infor-
mation was acquired under authority of the Act
and that any knowing disclosure of the informa-
tion may subject the officers and employees of the
other agency to the penalties in section 14(d) of
the Act (15 U.S.C. 2613(d)).
(i) Disclosure of information relevant in a pro-
ceeding. (1) Under section 14(a)(4) of the Act (15
U.S.C. 2613(a)(4)), any information to which this
section applies may be disclosed by EPA when the
information is relevant in a proceeding under the
Act, notwithstanding the fact that the information
otherwise might be entitled to confidential treat-
ment under this subpart. However, any such dis-
closure shall be made in a manner that preserves
the confidentiality of the information to the extent
practicable without impairing the proceeding. Dis-
closure of information to which this section ap-
plies because of its relevance in a proceeding shall
be made only in accordance with this paragraph
(i).
(2)-(4) The provisions of §2.301(g) (2), (3),
and (4) are incorporated by reference as para-
graphs (i) (2), (3), and (4), respectively, of this
section.
(j) Disclosure of information to contractors and
subcontractors. (1) Under section 14(a)(2) of the
Act (15 U.S.C. 2613(a)(2)), any information to
which this section applies may be disclosed by
EPA to a contractor or subcontractor of the United
States performing work under the Act, notwith-
standing the fact that the information otherwise
might be entitled to confidential treatment under
this subpart. Subject to the limitations in this para-
graph (j), information to which this section applies
may be disclosed:
(i) To a contractor or subcontractor with EPA,
if the EPA program office managing the contract
first determines in writing that such disclosure is
necessary for the satisfactory performance by the
contractor or subcontractor of the contract or sub-
contract; or
(ii) To a contractor or subcontractor with an
agency other than EPA, if the EPA program office
which provides the information to that agency,
contractor, or subcontractor first determines in
writing, in consultation with the General Counsel,
that such disclosure is necessary for the satisfac-
tory performance by the contractor or subcontrac-
tor of the contract or subcontract.
(2)-(4) The provisions of §2.301(h)(2) (ii), (iii),
and (iv) are incorporated by reference as para-
graphs (j) (2), (3), and (4), respectively, of this
section.
(5) At the time any information is furnished to
a contractor or subcontractor under this paragraph
(j), the EPA office furnishing the information to
the contractor or subcontractor shall notify the
contractor or subcontractor that the information
was acquired under authority of the Act and that
any knowing disclosure of the information may
subject the contractor or subcontractor and its em-
ployees to the penalties in section 14(d) of the Act
(15 U.S.C. 2613(d)).
(k) Disclosure of information when necessary to
protect health or the environment against an un-
reasonable risk of injury. (1) Under section
14(a)(3) of the Act (15 U.S.C 2613(a)(3)), any in-
formation to which this section applies may be
disclosed by EPA when disclosure is necessary to
protect health or the environment against an unrea-
sonable risk of injury to health or the environment.
However, any disclosure shall be made in a man-
ner that preserves the confidentiality of the infor-
mation to the extent not inconsistent with protect-
ing health or the environment against the unrea-
sonable risk of injury. Disclosure of information to
which this section applies because of the need to
protect health or the environment against an unrea-
sonable risk of injury shall be made only in ac-
cordance with this paragraph (k).
(2) If any EPA office determines that there is
an unreasonable risk of injury to health or the en-
vironment and that to protect health or the envi-
ronment against the unreasonable risk of injury it
is necessary to disclose information to which this
section applies that otherwise might be entitled to
confidential treatment under this subpart, the EPA
office shall notify the General Counsel in writing
of the nature of the unreasonable risk of injury,
the extent of the disclosure proposed, how the pro-
posed disclosure will serve to protect health or the
environment against the unreasonable risk of in-
jury, and the proposed date of disclosure. Such no-
tification shall be made as soon as practicable
after discovery of the unreasonable risk of injury.
If the EPA office determines that the risk of injury
is so imminent that it is impracticable to furnish
written notification to the General Counsel, the
EPA office shall notify the General Counsel oral-
iy.
(3) Upon receipt of notification under paragraph
(k)(2) of this section, the General Counsel shall
make a determination in writing whether disclo-
sure of information to which this section applies
that otherwise might be entitled to confidential
treatment is necessary to protect health or the en-
vironment against an unreasonable risk of injury.
The General Counsel shall also determine the ex-
tent of disclosure necessary to protect against the
unreasonable risk of injury as well as when the
disclosure must be made to protect against the un-
reasonable risk of injury.
32
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§2.307
(4) If the General Counsel determines that dis-
closure of information to which this section ap-
plies that otherwise might be entitled to confiden-
tial treatment is necessary to protect health or the
environment against an unreasonable risk of in-
jury, the General Counsel shall furnish notice to
each affected business of the contemplated disclo-
sure and of the General Counsel's determination.
Such notice shall be made in writing by certified
mail, return receipt requested, at least 15 days be-
fore the disclosure is to be made. The notice shall
state the date upon which disclosure will be made.
However, if the General Counsel determines that
the risk of injury is so imminent that it is imprac-
ticable to furnish such notice 15 days before the
proposed date of disclosure, the General Counsel
may provide notice by means that will provide re-
ceipt of the notice by the affected business at least
24 hours before the disclosure is to be made. This
may be done by telegram, telephone, or other rea-
sonably rapid means.
[43 FR 40003, Sept. 8, 1978, as amended at 44 FR
17674, Mar. 23, 1979; 58 FR 462, Jan. 5, 1993]
§ 2.307 Special rules governing certain
information obtained under the
Federal Insecticide, Fungicide and
Rodenticide Act.
(a) Definitions. For the purposes of this section;
(1) Act means the Federal Insecticide, Fungicide
and Rodenticide Act, as amended, 7 U.S.C. 136 et
seq., and its predecessor, 7 U.S.C. 135 et seq.
(2) Applicant means any person who has sub-
mitted to EPA (or to a predecessor agency with
responsibility for administering the Act) a registra-
tion statement or application for registration under
the Act of a pesticide or of an establishment.
(3) Registrant means any person who has ob-
tained registration under the Act of a pesticide or
of an establishment.
(b) Applicability. This section applies to all in-
formation submitted to EPA by an applicant or
registrant for the purpose of satisfying some re-
quirement or condition of the Act or of regulations
which implement the Act, including information
originally submitted to EPA for some other pur-
pose but incorporated by the applicant or registrant
into a submission in order to satisfy some require-
ment or condition of the Act or of regulations
which implement the Act. This section does not
apply to information supplied to EPA by a peti-
tioner in support of a petition for a tolerance under
21 U.S.C. 346a(d), unless the information is also
described by the first sentence of this paragraph.
(c) Basic rules which apply without change.
Sections 2.201 through 2.203, 2.206, 2.207, and
2.210 through 2.215 apply without change to in-
formation to which this section applies.
(d) Initial action by EPA office. Section 2.204
applies to information to which this section ap-
plies, except that the provisions of paragraph (e)
of this section regarding the time allowed for
seeking judicial review shall be reflected in any
notice furnished to a business under § 2.204(d)(2).
(e) Final confidentiality determination by EPA
legal office. Section 2.205 applies to information
to which this section applies, except that—
(1) Notwithstanding §2.205(i), the General
Counsel (or his designee), rather than the Regional
Counsel, shall make the determinations and take
the actions required by §2.205;
(2) In addition to the statement prescribed by
the second sentence of §2.205(f)(2), the notice of
denial of a business confidentiality claim shall
state that under section 10(c) of the Act, 7 U.S.C.
136h(c), the business may commence an action in
an appropriate Federal district court for a declara-
tory judgment;
(3) The following sentence is substituted for the
third sentence of §2.205(f)(2): "With respect to
EPA's implementation of the determination, the
notice shall state that (subject to §2.210) EPA will
make the information available to the public on
the thirty-first (31st) calendar day after the date of
the business's receipt of the written notice (or on
such later date as is established in lieu thereof
under paragraph (f)(3) of this section), unless the
EPA legal office has first been notified of the
business's commencement of an action in a Fed-
eral court to obtain judicial review of the deter-
mination or to obtain a declaratory judgment under
section 10(c) of the Act and to obtain preliminary
injunctive relief against disclosure."; and
(4) Notwithstanding §2.205(g), the 31 calendar
day period prescribed by § 2.205(f)(2), as modified
by paragraph (e)(3) of this section, shall not be
shortened without the consent of the business.
(f) [Reserved]
(g) Substantive criteria for use in confidentiality
determinations. Section 2.208 applies without
change to information to which this section ap-
plies; however, no information to which this sec-
tion applies is voluntarily submitted information.
(h) Disclosure in special circumstances. (1) Sec-
tion 2.209 applies without change to information
to which this section applies. In addition, under
section 12(a)(2)(D) of the Act, 7 U.S.C.
136j(a)(2)(D), EPA possesses authority to disclose
any information to which this section applies to
physicians, pharmacists, and other qualified per-
sons needing such information for the performance
of their duties, notwithstanding the fact that the in-
formation might otherwise be entitled to confiden-
tial treatment under this subpart. Such authority
under section 12(a)(2)(D) of the Act may be exer-
cised only in accordance with paragraph (h)(2) or
(h)(3) of this section.
33
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§2.308
(2) Information to which this section applies
may be disclosed (notwithstanding the fact that it
might otherwise be entitled to confidential treat-
ment under this subpart) to physicians, phar-
macists, hospitals, veterinarians, law enforcement
personnel, or governmental agencies with respon-
sibilities for protection of public health, and to
employees of any such persons or agencies, or to
other qualified persons, when and to the extent
that disclosure is necessary in order to treat illness
or injury or to prevent imminent harm to persons,
property, or the environment, in the opinion of the
Administrator or his designee.
(3) Information to which this section applies
may be disclosed (notwithstanding the fact that it
otherwise might be entitled to confidential treat-
ment under this subpart) to a person under con-
tract to EPA to perform work for EPA in connec-
tion with the Act or regulations which implement
the Act, if the EPA program office managing the
contract first determines in writing that such dis-
closure is necessary in order that the contractor
may carry out the work required by the contract.
Any such disclosure to a contractor shall be made
only in accordance with the procedure and require-
ments of § 2.301(h)(2) (ii) through (iv).
(4) Information to which this section applies,
and which relates to formulas of products, may be
disclosed at any public hearing or in findings of
fact issued by the Administrator, to the extent and
in the manner authorized by the Administrator or
his designee.
[41 FR 36902, Sept. 1, 1976, as amended at 43 FR
40005, Sept. 8, 1978]
§2.308 Special rules governing certain
information obtained under the
Federal Food, Drug and Cosmetic
Act.
(a) Definitions. For the purposes of this section:
(1) Act means the Federal Food, Drug and Cos-
metic Act, as amended, 21 U.S.C. 301 et seq.
(2) Petition means a petition for the issuance of
a regulation establishing a tolerance for a pesticide
chemical or exempting the pesticide chemical from
the necessity of a tolerance, pursuant to section
408(d) of the Act, 21 U.S.C. 346a(d).
(3) Petitioner means a person who has submit-
ted a petition to EPA (or to a predecessor agency).
(b) Applicability. (1) This section applies only
to business information submitted to EPA (or to
an advisory committee established under the Act)
by a petitioner, solely in support of a petition
which has not been acted on by the publication by
EPA of a regulation establishing a tolerance for a
pesticide chemical or exempting the pesticide
chemical from the necessity of a tolerance, as pro-
vided in section 408(d) (2) or (3) of the Act, 21
U.S.C. 346a(d) (2) or (3).
(2) Section 2.307, rather than this section, ap-
plies to information described by the first sentence
of §2.307(b) (material incorporated into submis-
sions in order to satisfy the requirements of the
Federal Insecticide, Fungicide and Rodenticide
Act, as amended), even though such information
was originally submitted by a petitioner in support
of a petition.
(3) This section does not apply to information
gathered by EPA under a proceeding initiated by
EPA to establish a tolerance under section 408(e)
of the Act, 21 U.S.C. 346a(e).
(c) Basic rules which apply without change.
Sections 2.201, 2.202, 2.206, 2.207, and 2.210
through 2.215 apply without change to information
to which this section applies.
(d) Effect of submission of information without
claim. Section 2.203 (a) and (b) apply without
change to information to which this section ap-
plies. Section 2.203(c), however, does not apply to
information to which this section applies. A peti-
tioner's failure to assert a claim when initially
submitting a petition shall not constitute a waiver
of any claim the petitioner may have.
(e) Initial action by EPA office. Section 2.204
applies to information to which this section ap-
plies, except that—
(1) Unless the EPA office has on file a written
waiver of a petitioner's claim, a petitioner shall be
regarded as an affected business, a petition shall
be treated as if it were covered by a business con-
fidentiality claim, and an EPA office acting under
§2.204(d) shall determine that the information in
the petition is or may be entitled to confidential
treatment and shall take action in accordance with
§2.204(d)(l);
(2) In addition to other required provisions of
any notice furnished to a petitioner under
§ 2.204(e), such notice shall state that—
(i) Section 408(f) of the Act, 21 U.S.C. 346a(f),
affords absolute confidentiality to information to
which this section applies, but after publication by
EPA of a regulation establishing a tolerance (or
exempting the pesticide chemical from the neces-
sity of a tolerance) neither the Act nor this section
affords any protection to the information;
(ii) Information submitted in support of a peti-
tion which is also incorporated into a submission
in order to satisfy a requirement or condition of
the Federal Insecticide, Fungicide and Rodenticide
Act, as amended, 7 U.S.C. 136 et seq., is regarded
by EPA as being governed, with respect to busi-
ness confidentiality, by § 2.307 rather than by this
section;
(iii) Although it appears that this section may
apply to the information at this time, EPA is pres-
ently engaged in determining whether for any rea-
son the information is entitled to confidential treat-
ment or will be entitled to such treatment if and
34
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§2.310
when this section no longer applies to the informa-
tion; and
(iv) Information determined by EPA to be cov-
ered by this section will not be disclosed for as
long as this section continues to apply, but will be
made available to the public thereafter (subject to
§2.210) unless the business furnishes timely com-
ments in response to the notice.
(f) Final confidentiality determination by EPA
legal office. Section 2.205 applies to information
to which this section applies, except that—
(1) Notwithstanding §2.205(i), the General
Counsel or his designee, rather than the Regional
counsel, shall in all cases make the determinations
and take the actions required by § 2.205;
(2) In addition to the circumstances mentioned
in §2.205(f)(l), notice in the form prescribed by
§2.205(f)(2) shall be furnished to each affected
business whenever information is found to be enti-
tled to confidential treatment under section 408(f)
of the Act but not otherwise entitled to confiden-
tial treatment. With respect to such cases, the fol-
lowing sentences shall be substituted for the third
sentence of §2.205(f)(2): "With respect to EPA's
implementation of the determination, the notice
shall state that (subject to §2.210) EPA will make
the information available to the public on the thir-
ty-first (31st) calendar day after the business's re-
ceipt of the written notice (or on such later date
as is established in lieu thereof under paragraph
(f)(3) of this section), unless the EPA legal office
has first been notified of the business's com-
mencement of an action in a Federal court to ob-
tain judicial review of the determination and to
obtain preliminary injunctive relief against disclo-
sure; provided, that the information will not be
made available to the public for so long as it is
entitled to confidential treatment under section
408(f) of the Federal Food, Drug and Cosmetic
Act, 21 U.S.C. 346a(f)."; and
(3) Notwithstanding §2.205(g), the 31 calendar
day period prescribed by § 2.205(f)(2), as modified
by paragraph (f)(2) of this section, shall not be
shortened without the consent of the business.
(g) [Reserved]
(h) Substantive criteria for use in confidentiality
determinations. Section 2.208 does not apply to
information to which this section applies. Such in-
formation shall be determined to be entitled to
confidential treatment for so long as this section
continues to apply to it.
(i) Disclosure in special circumstances. (1) Sec-
tion 2.209 applies to information to which this
section applies. In addition, under Section 408(f)
of the Act, 21 U.S.C. 346a(f), EPA is authorized
to disclose the information to other persons. Such
authority under section 408(f) of the Act may be
exercised only in accordance with paragraph (i)(2)
or (i)(3) of this section.
(2) Information to which this section applies
may be disclosed (notwithstanding the fact that it
otherwise might be entitled to confidential treat-
ment under this subpart) to a person under con-
tract to EPA to perform work for EPA in connec-
tion with the Act, with the Federal Insecticide,
Fungicide, and Rodenticide Act, as amended, or
regulations which implement either such Act, if
the EPA program office managing the contract
first determines in writing that such disclosure is
necessary in order that the contractor may carry
out the work required by the contract. Any such
disclosure to a contractor shall be made only in
accordance with the procedures and requirements
of §2.301(h)(2) (ii) through (iv).
(3) Information to which this section applies
may be disclosed by EPA to an advisory commit-
tee in accordance with section 408(d) of the Act,
21 U.S.C. 346a(d).
[41 FR 36902, Sept. 1, 1976, as amended at 43 FR
40005, Sept. 8, 1978]
§2.309 Special rules governing certain
information obtained under the Ma-
rine Protection, Research and Sanc-
tuaries Act of 1972.
(a) Definitions. For the purposes of this section:
(1) Act means the Marine Protection, Research
and Sanctuaries Act of 1972, 33 U.S.C. 1401 et
seq.
(2) Permit means any permit applied for or
granted under the Act.
(3) Application means an application for a per-
mit.
(b) Applicability. This section applies to all in-
formation provided to or obtained by EPA as a
part of any application or in connection with any
permit.
(c) Basic rules which apply without change.
Sections 2.201 through 2.207 and 2.209 through
2.215 apply without change to information to
which this section applies.
(d) Substantive criteria for use in confidentiality
determinations. Section 2.208 does not apply to
information to which this section applies. Pursuant
to section 104(f) of the Act, 33 U.S.C. 1414(f), no
information to which this section applies is eligi-
ble for confidential treatment.
[41 FR 36902, Sept. 1, 1976, as amended at 43 FR
40005, Sept. 8, 1978]
§2.310 Special rules governing certain
information obtained under the
Comprehensive Environmental Re-
sponse, Compensation, and Liabil-
ity Act of 1980, as amended.
(a) Definitions. For purposes of this section:
(1) Act means the Comprehensive Environ-
mental Response, Compensation, and Liability Act
35
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§2.310
of 1980, as amended, including amendments made
by the Superfund Amendments and Reauthoriza-
tion Act of 1986, 42 U.S.C. 9601, et seq.
(2) Person has the meaning given it in section
101(21) of the Act, 42 U.S.C. 9601(21).
(3) Facility has the meaning given it in section
101(9) of the Act, 42 U.S.C. 9601(9).
(4) Hazardous substance has the meaning given
it in section 101(14) of the Act, 42 U.S.C.
9601(14).
(5) Release has the meaning given it in section
101(22) of the Act, 42 U.S.C. 9601(22).
(6) Proceeding means any rulemaking or adju-
dication conducted by EPA under the Act or under
regulations which implement the Act (including
the issuance of administrative orders under section
106 of the Act and cost recovery pre-litigation set-
tlement negotiations under sections 107 or 122 of
the Act), any cost recovery litigation under section
107 of the Act, or any administrative determina-
tion made under section 104 of the Act, but not
including determinations under this subpart.
(b) Applicability. This section applies only to in-
formation provided to or obtained by EPA under
section 104 of the Act, 42 U.S.C. 9604, by or
from any person who stores, treats, or disposes of
hazardous wastes; or where necessary to ascertain
facts not available at the facility where such haz-
ardous substances are located, by or from any per-
son who generates, transports, or otherwise han-
dles or has handled hazardous substances, or by or
from any person who performs or supports re-
moval or remedial actions pursuant to section
104(a) of the Act. Information will be considered
to have been provided or obtained under section
104 of the Act if it was provided in response to
a request from EPA or a representative of EPA
made for any of the purposes stated in section
104, if it was provided pursuant to the terms of a
contract, grant or other agreement to perform work
pursuant to section 104, or if its submission could
have been required under section 104, regardless
of whether section 104 was cited as authority for
any request for the information or whether the in-
formation was provided directly to EPA or
through some third person.
(c) Basic rules which apply without change.
Sections 2.201 through 2.207 and §§2.209 through
2.215 apply without change to information to
which this section applies.
(d) [Reserved]
(e) Substantive criteria for use in confidentiality
determinations. Section 2.208 applies without
change to information to which this section ap-
plies; however, no information to which this sec-
tion applies is voluntarily submitted information.
(f) [Reserved]
(g)(l) Under section 104(e)(7)(A) of the Act (42
U.S.C. 9604(e)(7)(A)) any information to which
this section applies may be disclosed by EPA be-
cause of the relevance of the information in a pro-
ceeding under the Act, notwithstanding the fact
that the information otherwise might be entitled to
confidential treatment under this subpart. Disclo-
sure of information to which this section applies
because of its relevance in a proceeding shall be
made only in accordance with this paragraph (g).
(2) The provisions of §2.301(g)(2) are to be
used as paragraph (g)(2) of this section.
(3) In connection with any proceeding involving
a decision by a presiding officer after an evi-
dentiary or adjudicatory hearing, except with re-
spect to litigation conducted by a Federal court,
information to which this section applies which
may be entitled to confidential treatment may be
made available to the public, or to one or more
parties of record to the proceeding, upon EPA's
initiative, under this paragraph (g)(3). An EPA of-
fice proposing disclosure of information under this
paragraph (g)(3) shall so notify the presiding offi-
cer in writing. Upon receipt of such a notification,
the presiding officer shall notify each affected
business that disclosure under this paragraph (g)(3)
has been proposed, and shall afford each such
business a period for comment found by the pre-
siding officer to be reasonable under the cir-
cumstances. Information may be disclosed under
this paragraph (g)(3) only if, after consideration of
any timely comments submitted by the business,
the EPA office determines in writing that, for rea-
sons directly associated with the conduct of the
proceeding, the contemplated disclosure would
serve the public interest, and the presiding officer
determines in writing that the information is rel-
evant to a matter in controversy in the proceeding.
The presiding officer may condition disclosure of
the information to a party of record on the making
of such protective arrangements and commitments
as he finds to be warranted. Disclosure to one or
more parties of record, under protective arrange-
ments or commitments, shall not, of itself, affect
the eligibility of information for confidential treat-
ment under the other provisions of this subpart.
Any affected business shall be given at least 5
days notice by the presiding officer prior to mak-
ing the information available to the public or to
one or more of the parties of record to the pro-
ceeding.
(4) In connection with any proceeding involving
a decision by a presiding officer after an evi-
dentiary or adjudicatory hearing, except with re-
spect to litigation conducted by a Federal court,
information to which this section applies which
may be entitled to confidential treatment may be
made available to one or more parties of record to
the proceeding, upon request of a party, under this
paragraph (g)(4). A party of record seeking disclo-
sure of information shall direct his request to the
36
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§2.311
presiding officer. Upon receipt of such a request,
the presiding officer shall notify each affected
business that disclosure under this paragraph (g)(4)
has been requested, and shall afford each such
business a period for comment found by the pre-
siding officer to be reasonable under the cir-
cumstances. Information may be disclosed to a
party of record under this paragraph (g)(4) only if,
after consideration of any timely comments sub-
mitted by the business, the presiding officer deter-
mines in writing that:
(i) The party of record has satisfactorily shown
that with respect to a significant matter which is
in controversy in the proceeding, the party's abil-
ity to participate effectively in the proceeding will
be significantly impaired unless the information is
disclosed to him; and
(ii) Any harm to an affected business that would
result from the disclosure is likely to be out-
weighed by the benefit to the proceeding and the
public interest that would result from the disclo-
sure.
The presiding officer may condition disclosure of
the information to a party of record on the making
of such protective arrangements and commitments
as he finds to be warranted. Disclosure to one or
more parties of record, under protective arrange-
ments or commitments, shall not, of itself, affect
the eligibility of information for confidential treat-
ment under the other provisions of this subpart.
Any affected business shall be given at least 5
days notice by the presiding officer prior to mak-
ing the information available to one or more of the
parties of record to the proceeding.
(5) In connection with cost recovery pre-litiga-
tion settlement negotiations under sections 107 or
122 of the Act (42 U.S.C. 9607, 9622), any infor-
mation to which this section applies that may be
entitled to confidential treatment may be made
available to potentially responsible parties pursuant
to a contractual agreement to protect the informa-
tion.
(6) In connection with any cost recovery pro-
ceeding under section 107 of the Act involving a
decision by a presiding officer after an evidentiary
or adjudicatory hearing, any information to which
this section applies that may be entitled to con-
fidential treatment may be made available to one
or more parties of record to the proceeding, upon
EPA's initiative, under this paragraph (g)(6). Such
disclosure must be made pursuant to a stipulation
and protective order signed by all parties to whom
disclosure is made and by the presiding officer.
(h) Disclosure to authorized representatives. (1)
Under section 104(e)(7) of the Act (42 U.S.C.
9604(e)(7)), EPA possesses authority to disclose to
any authorized representative of the Untied States
any information to which this section applies, not-
withstanding the fact that the information might
otherwise be entitled to confidential treatment
under this subpart. Such authority may be exer-
cised only in accordance with paragraph (h)(2) or
(h)(3) of this section.
(2) The provisions of §2.301(h)(2) are to be
used as paragraph (h)(2) of this section.
(3) The provisions of §2.301(h)(3) are to be
used as paragraph (h)(3) of this section.
(4) At the time any information is furnished to
a contractor, subcontractor, or state or local gov-
ernment under this paragraph (h), the EPA office
furnishing the information to the contractor, sub-
contractor, or state or local government agency
shall notify the contractor, subcontractor, or state
or local government agency that the information
may be entitled to confidential treatment and that
any knowing and willful disclosure of the informa-
tion may subject the contractor, subcontractor, or
state or local government agency and its employ-
ees to penalties in section 104(e)(7)(B) of the Act
(42 U.S.C. 9604(e)(7)(B)).
[50 FR 51663, Dec. 18, 1985, as amended at 58 FR 462,
Jan. 5, 1993]
§2.311 Special rules governing certain
information obtained under the
Motor Vehicle Information and Cost
Savings Act.
(a) Definitions. For the purposes of this section:
(1) Act means the Motor Vehicle Information
and Cost Savings Act, as amended, 15 U.S.C.
1901 et seq.
(2) Average fuel economy has the meaning
given it in section 501(4) of the Act, 15 U.S.C.
2001(4).
(3) Fuel economy has the meaning given it in
section 501(6) of the Act, 15 U.S.C. 2001(6).
(4) Fuel economy data means any measurement
or calculation of fuel economy for any model type
and average fuel economy of a manufacturer under
section 503(d) of the Act, 15 U.S.C. 2003(d).
(5) Manufacturer has the meaning given it in
section 501(9) of the Act, 15 U.S.C. 2001(9).
(6) Model type has the meaning given it in sec-
tion 501(11) of the Act, 15 U.S.C. 2001(11).
(b) Applicability. This section applies only to in-
formation provided to or obtained by EPA under
Title V, Part A of the Act, 15 U.S.C. 2001
through 2012. Information will be considered to
have been provided or obtained under Title V, Part
A of the Act if it was provided in response to a
request from EPA made for any purpose stated in
Title V, Part A, or if its submission could have
been required under Title V Part A, regardless of
whether Title V Part A was cited as the authority
for any request for information or whether the in-
formation was provided directly to EPA or
through some third person.
37
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§2.401
(c) Basic rules which apply without change.
Sections 2.201 through 2.207 and §§2.209 through
2.215 apply without change to information to
which this section applies.
(d) [Reserved]
(e) Substantive criteria for use in confidentiality
determinations. Section 2.208 applies without
change to information to which this section ap-
plies, except that information this is fuel economy
data is not eligible for confidential treatment. No
information to which this section applies is volun-
tarily submitted information.
(f) [Reserved]
(g) Disclosure of information relevant to a pro-
ceeding. (1) Under section 505(d)(l) of the Act,
any information to which this section applies may
be released by EPA because of the relevance of
the information to a proceeding under Title V, Part
A of the Act, notwithstanding the fact that the in-
formation otherwise might be entitled to confiden-
tial treatment under this subpart. Release of infor-
mation to which this section applies because of its
relevance to a proceeding shall be made only in
accordance with this paragraph (g).
(2) The provisions of §2.301(g)(2) are to be
used as paragraph (g)(2) of this section.
(3) The provisions of §2.301(g)(3) are to be
used as paragraph (g)(3) of this section.
(4) The provisions of §2.301(g)(4) are to be
used as paragraph (g)(3) of this section.
[50 FR 51663, Dec. 18, 1985]
Subpart C—Testimony by Employ-
ees and Production of Docu-
ments in Civil Legal Proceed-
ings Where the United States
Is Not a Party
AUTHORITY: 5 U.S.C. 301; Reorganization Plan No. 3
of 1970, 5 U.S.C. App.; 33 U.S.C. 361(a); 42 U.S.C.
300j-9; 42 U.S.C. 691 la, 42 U.S.C. 7601(a).
SOURCE: 50 FR 32387, Aug. 9, 1985, unless otherwise
noted.
§2.401 Scope and purpose.
This subpart sets forth procedures to be fol-
lowed when an EPA employee is requested or
subpoenaed to provide testimony concerning infor-
mation acquired in the course of performing offi-
cial duties or because of the employee's official
status. (In such cases, employees must state for the
record that their testimony does not necessarily
represent the official position of EPA. If they are
called to state the official position of EPA, they
should ascertain that position before appearing.)
These procedures also apply to subpoenas duces
tecum for any document in the possession of EPA
and to requests for certification of copies of docu-
ments.
(a) These procedures apply to:
(1) State court proceedings (including grand
jury proceedings);
(2) Federal civil proceedings, except where the
United States, EPA or another Federal agency is
a party; and
(3) State and local legislative and administrative
proceedings.
(b) These procedures do not apply:
(1) To matters which are not related to EPA;
(2) To Congressional requests or subpoenas for
testimony or documents;
(3) Where employees provide expert witness
services as approved outside activities in accord-
ance with 40 CFR part 3, subpart E (in such cases,
employees must state for the record that the testi-
mony represents their own views and does not
necessarily represent the official position of EPA);
(4) Where employees voluntarily testify as pri-
vate citizens with respect to environmental matters
(in such cases, employees must state for the record
that the testimony represents their own views and
does not necessarily represent the official position
of EPA).
(c) The purpose of this subpart is to ensure that
employees' official time is used only for official
purposes, to maintain the impartiality of EPA
among private litigants, to ensure that public funds
are not used for private purposes and to establish
procedures for approving testimony or production
of documents when clearly in the interests of EPA.
§2.402 Policy on presentation of testi-
mony and production of documents.
(a) With the approval of the cognizant Assistant
Administrator, Office Director, Staff Office Direc-
tor or Regional Administrator or his designee,
EPA employees (as defined in 40 CFR 3.102 (a)
and (b)) may testify at the request of another Fed-
eral agency, or, where it is in the interests of EPA,
at the request of a State or local government or
State legislative committee.
(b) Except as permitted by paragraph (a) of this
section, no EPA employee may provide testimony
or produce documents in any proceeding to which
this subpart applies concerning information ac-
quired in the course of performing official duties
or because of the employee's official relationship
with EPA, unless authorized by the General Coun-
sel or his designee under §§2.403 through 2.406.
§2.403 Procedures when voluntary tes-
timony is requested.
A request for testimony by an EPA employee
under § 2.402(b) must be in writing and must state
the nature of the requested testimony and the rea-
sons why the testimony would be in the interests
38
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§2.406
of EPA. Such requests are immediately sent to the
General Counsel or his designee (or, in the case
of employees in the Office of Inspector General,
the Inspector General or his designee) with the
recommendations of the employee's supervisors.
The General Counsel or his designee, in consulta-
tion with the appropriate Assistant Administrator,
Regional Administrator, or Staff Office Director
(or, in the case of employees in the Office of In-
spector General, the Inspector General or his des-
ignee), determines whether compliance with the
request would clearly be in the interests of EPA
and responds as soon as practicable.
§2.404 Procedures when an employee
is subpoenaed.
(a) Copies of subpoenas must immediately be
sent to the General Counsel or his designee with
the recommendations of the employee's super-
visors. The General Counsel or his designee, in
consultation with the appropriate Assistant Admin-
istrator, Regional Administrator or Staff Office Di-
rector, determines whether compliance with the
subpoena would clearly be in the interests of EPA
and responds as soon as practicable.
(b) If the General Counsel or his designee de-
nies approval to comply with the subpoena, or if
he has not acted by the return date, the employee
must appear at the stated time and place (unless
advised by the General Counsel or his designee
that the subpoena was not validly issued or served
or that the subpoena has been withdrawn), produce
a copy of these regulations and respectfully refuse
to provide any testimony or produce any docu-
ments. United States ex rel. Touhy v. Ragen, 340
U.S. 462 (1951).
(c) Where employees in the Office of Inspector
General are subpoenaed, the Inspector General or
his designee makes the determination under para-
graphs (a) and (b) of this section in consultation
with the General Counsel.
(d) The General Counsel will request the assist-
ance of the Department of Justice or a U.S. Attor-
ney where necessary to represent the interests of
the Agency and the employee.
§2.405 Subpoenas duces tecum.
Subpoenas duces tecum for documents or other
materials are treated the same as subpoenas for
testimony. Unless the General Counsel or his des-
ignee, in consultation with the appropriate Assist-
ant Administrator, Regional Administrator or Staff
Office Director (or, as to employees in the Office
of Inspector General, the Inspector General) deter-
mines that compliance with the subpoena is clearly
in the interests of EPA, the employee must appear
at the stated time and place (unless advised by the
General Counsel or his designee that the subpoena
was not validly issued or served or that the sub-
poena has been withdrawn) and respectfully refuse
to produce the subpoenaed materials. However,
where a subpoena duces tecum is essentially a
written request for documents, the requested docu-
ments will be provided or denied in accordance
with subparts A and B of this part where approval
to respond to the subpoena has not been granted.
§2.406 Requests for authenticated cop-
ies of EPA documents.
Requests for authenticated copies of EPA docu-
ments for purposes of admissibility under 28
U.S.C. 1733 and Rule 44 of the Federal Rules of
Civil Procedure will be granted for documents
which would otherwise be released pursuant to
subpart A. For purposes of Rule 44 the person
having legal custody of the record is the cognizant
Assistant Administrator, Regional Administrator,
Staff Office Director or Office Director or his des-
ignee. The advice of the Office of General Coun-
sel should be obtained concerning the proper form
of authentication.
39
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PART 3—EMPLOYEE
RESPONSIBILITIES AND CONDUCT
Sec.
3.100 Cross-reference to employee ethical conduct
standards and financial disclosure regulations.
3.101 Waiver of certain financial interests.
AUTHORITY: 5 U.S.C. 7301 and 18 U.S.C. 208(b)(2).
SOURCE: 61 FR 40503, Aug. 2, 1996, unless otherwise
noted.
§3.100 Cross-reference to employee
ethical conduct standards and fi-
nancial disclosure regulations.
Employees of the Environmental Protection
Agency (EPA) should refer to the Standards of
Ethical Conduct for Employees of the Executive
Branch at 5 CFR part 2635, the EPA regulations
at 5 CFR part 6401 that supplement those stand-
ards, and the Executive Branch financial disclosure
regulations at 5 CFR part 2634.
§3.101 Waiver of certain financial in-
terests.
(a) The prohibition of 18 U.S.C. 208(a) may be
waived by general regulation. Financial interests
derived from the following have been determined
to be too remote or too inconsequential to affect
the integrity of employee's services, and employ-
ees may participate in matters affecting them:
(1) Mutual funds (including tax-exempt bond
funds), except those which concentrate their in-
vestments in particular industries;
(2) Life insurance, variable annuity, or guaran-
teed investment contracts issued by insurance
companies;
(3) Deposits in a bank, savings and loan asso-
ciation, credit union, or similar financial institu-
tion;
(4) Real property used solely as the personal
residence of an employee;
(5) Bonds or other securities issued by the U.S.
Government or its agencies.
(b) This provision will be superseded when the
Office of Government Ethics publishes its Execu-
tive Branch-wide exemptions and EPA will pub-
lish a document in the FEDERAL REGISTER revok-
ing it at that time.
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PART 4—UNIFORM RELOCATION §4.1 Uniform relocation assistance
ASSISTANCE AND REAL PROP- and real property acquisition.
ERTY ACQUISITION FOR FEDERAL Effective April 2, 1989, regulations and proce-
AND FEDERALLY ASSISTED PRO- dures for complying with the Uniform Relocation
f^RAMS Assistance and Real Property Acquisition Policies
Act of 1970 (Pub. L. 91-646, 84 Stat. 1894, 42
U.S.C. 4601), as amended by the Surface Trans-
AUTHORITY: Section 213, Uniform Relocation Assist- rtation and Uniform Relocation Assistance Act
ance and Real Property Acquisition Policies Act of 1970, rf ^ ^ w m ^ ^ ^
as amended by the Surface Transportation and Uniform \ .
Relocation Assistance Act of 1987, Title IV of Pub. L. U'S'C- 4601 note) are Set forth m 49 CFR ?art 24
100-17, 101 Stat. 246-256 (42 U.S.C. 4601 note). [52 FR 48023, Dec. 17, 1987 and 54 FR 8912, Mar. 2,
1989]
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PART 5—TUITION FEES FOR DIRECT
TRAINING
Sec.
5.1 Establishment of fees.
5.2 Definitions.
5.3 Schedule of fees.
5.4 Registration offices.
5.5 Procedure for payment.
5.6 Refunds.
5.7 Waiver of fee.
5.8 Appeal of waiver denial.
AUTHORITY: Title V, 65 Stat. 290 (31 U.S.C. 483a).
SOURCE: 38 FR 32806, Nov. 28, 1973, unless otherwise
noted.
§5.1 Establishment of fees.
The Environmental Protection Agency shall
charge the revised schedule of tuition fees for all
persons attending EPA direct training courses
which commence on or after January 1, 1974.
§5.2 Definitions.
Direct Training means all technical and mana-
gerial training conducted directly by EPA for per-
sonnel of State and local governmental agencies,
other Federal agencies, private industries, univer-
sities, and other non-EPA agencies and organiza-
tions.
Registration office means any of the several of-
fices in EPA which have been designated to re-
ceive applications for attendance at direct training
courses. (See §5.4 for a listing of such courses.)
§ 5.3 Schedule of fees.
Tuition fees for direct training will be estab-
lished within the range of $15 to $70 per training
day depending upon whether the course is pre-
dominantly a laboratory, lecture, or survey course,
or a course with other similar variables. Each cog-
nitive program and regional office will announce
the tuition fee at the time the date for offering the
course is announced. As a transition easement, tui-
tion fees for all State and local government em-
ployees are established at a maximum of $25 per
training day regardless of type of course until July
1, 1974. After that date they are to pay the full
fee. Charges for field courses taught by EPA in-
structors are for actual expenses on a per course
basis. Complete tuition fee schedules may be ob-
tained from the registration offices listed in §5.4.
Tuition fees will be subject to change either up-
ward or downward, based on actual experience
under the system.
§5.4 Registration offices.
Direct training programs are offered by both
EPA national program offices and regional EPA
offices. Listed in this section are the EPA national
program offices and regional offices to which ap-
plications are to be sent. The proper registration
office may be determined from the specific course
announcement.
NATIONAL PROGRAM OFFICES
AIR PROGRAM
Direct Training Registration Office, Office of Air Pro-
grams, Research Triangle Park, NC 27717.
WASTE WATER TREATMENT PROGRAM
Direct Training Registration Office, National Training
Center, Robert A. Taft Sanitary Engineering Center, Envi-
ronmental Protection Agency, 4676 Columbia Parkway,
Cincinnati, OH 45226.
WATER SUPPLY TREATMENT PROGRAM
Direct Training Registration Office, Environmental Pro-
tection Agency, 4676 Columbia Parkway, Cincinnati, OH
45226.
SOLID WASTES MANAGEMENT PROGRAM
U.S. Environmental Protection Agency, Office of Solid
Waste Management Programs, Washington, DC 20460.
RADIATION PROGRAM
U.S. Environmental Protection Agency, Office of Radi-
ation Programs, Washington, DC 20460.
PESTICIDES PROGRAM
U.S. Environmental Protection Agency, Office of Pes-
ticides Programs, Washington, DC 20460.
REGIONAL EPA OFFICES
EPA, Regional Manpower Office, Region I, JFK Fed-
eral Building—Room 2303, Boston, MA 02203.
EPA, Regional Manpower Office, Region II, 26 Federal
Plaza, Room 845D, New York, NY 10007.
EPA, Regional Manpower Office, Region III, Sixth and
Walnut Streets, Philadelphia, PA 19106
EPA, Regional Manpower Office, Region IV, 1421
Peachtree Street, NE., 4th floor, Atlanta, GA 30309.
EPA, Regional Manpower Office, Region V, 1 North
Wacker Drive, Chicago, IL 60606.
EPA, Regional Manpower Office, Region VI, 1600 Pat-
terson, Suite 1100, Dallas, TX 75201.
EPA, Regional Manpower Office, Region VII, Room
249, 1735 Baltimore Avenue, Kansas City, MO 64108.
EPA, Regional Manpower Office, Region VIII, Suite
900, 1860 Lincoln Street, Denver, CO 80203.
EPA, Regional Manpower Office, Region IX, 100 Cali-
fornia Street, San Francisco, CA 94111.
EPA, Regional Manpower Office, Region X, 1200
Sixth Avenue, Seattle, WA 98101.
§5.5 Procedure for payment.
Applications for direct training courses shall be
completed and submitted in accordance with the
instructions issued by the respective national pro-
gram and/or regional offices. Fee payment in the
amount indicated by the course announcement
shall accompany completed applications (except in
the case of waiver requests as described in §5.75).
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§5.6
All applications for field courses will be submitted
in a timely manner by the sponsoring agency. Ex-
penses will be noted and charges assessed the
sponsoring agency after the course is conducted.
The charge will be payable upon submission. All
applicants shall make payment by check, payable
to the U.S. Environmental Protection Agency, ex-
cept applicants from Federal, State, and local
agencies may send a purchase order of other ac-
ceptable financial commitment. Such financial
commitment statements shall include information
as to the agency and account number to be
charged and other necessary information for bill-
ing purposes.
§5.6 Refunds.
An applicant may withdraw his application and
receive full reimbursement of his fee provided that
he notifies the appropriate registration office in
writing no later than 10 days before commence-
ment of the course for which he has registered.
§5.7 Waiver of fee.
Waivers of the full tuition fee may be granted
on a limited basis. Each waiver request must be
justified and considered by cognitive EPA units
on: (a) Severity of the pollution problem in the
area in which the applicant employee is working;
(b) bona-fide administrative or legal constraints of
the applicant agency to pay the reduced fee; (c)
service, resulting from the training that will be
provided as a benefit to the Federal Government.
No waivers will be granted for field courses.
Waivers are provided as a transitional easement
for exceptional cases and will not be granted after
July 1, 1975.
§5.8 Appeal of waiver denial.
Waiver denials may be appealed to the Office
of Education and Manpower Planning, Washing-
ton, DC 20460, to adjudicate and expedite agency
review. Appeal submissions should include copies
of original application and justification for waiver,
EPA registration office denial correspondence, and
other pertinent information supporting the request
for waiver.
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PART 6—PROCEDURES FOR IMPLE-
MENTING THE REQUIREMENTS OF
THE COUNCIL ON ENVIRON-
MENTAL QUALITY ON THE NA-
TIONAL ENVIRONMENTAL POLICY
ACT
Subpart A—General
Sec.
6.100 Purpose and policy.
6.101 Definitions.
6.102 Applicability.
6.103 Responsibilities.
6.104 Early involvement of private parties.
6.105 Synopsis of environmental review procedures.
6.106 Deviations.
6.107 Categorical exclusions.
6.108 Criteria for initiating an EIS.
Subpart B—Content of EISs
6.200 The environmental impact statement.
6.201 Format.
6.202 Executive summary.
6.203 Body of EISs.
6.204 Incorporation by reference.
6.205 List of preparers.
Subpart C—Coordination With Other Envi-
ronmental Review and Consultation
Requirements
6.300 General.
6.301 Landmarks, historical, and archeological sites.
6.302 Wetlands, floodplains, important farmlands, coast-
al zones, wild and scenic rivers, fish and wildlife,
and endangered species.
6.303 Air quality.
Subpart D—Public and Other Federal
Agency Involvement
6.400 Public involvement.
6.401 Official filing requirements.
6.402 Availability of documents.
6.403 The commenting process.
6.404 Supplements.
Subpart E—Environmental Review Proce-
dures for Wastewater Treatment Con-
struction Grants Program
6.500 Purpose.
6.501 Definitions.
6.502 Applicability and limitations.
6.503 Overview of the environmental review process.
6.504 Consultation during the facilities planning proc-
ess.
6.505 Categorical exclusions.
6.506 Environmental review process.
6.507 Partitioning the environmental review process.
6.508 Findings of No Significant Impact (FNSI) deter-
mination.
6.509 Criteria for initiating Environmental Impact State-
ments (EIS).
6.510 Environmental Impact Statement (EIS) prepara-
tion.
6.511 Record of Decision (ROD) for EISs and identi-
fication of mitigation measures.
6.512 Monitoring for compliance.
6.513 Public participation.
6.514 Delegation to States.
Subpart F—Environmental Review Proce-
dures for the New Source NPDES Pro-
gram
6.600 Purpose.
6.601 Definitions.
6.602 Applicability.
6.603 Limitations on actions during environmental re-
view process.
6.604 Environmental review process.
6.605 Criteria for preparing EISs.
6.606 Record of decision.
6.607 Monitoring.
Subpart G—Environmental Review Proce-
dures for Office of Research and De-
velopment Projects
6.700 Purpose.
6.701 Definition.
6.702 Applicability.
6.703 General.
6.704 Categorical exclusions.
6.705 Environmental assessment and finding of no sig-
nificant impact.
6.706 Environmental impact statement.
Subpart H—Environmental Review Proce-
dures for Solid Waste Demonstration
Projects
6.800 Purpose.
6.801 Applicability.
6.802 Criteria for preparing EISs.
6.803 Environmental review process.
6.804 Record of decision.
Subpart I—Environmental Review Proce-
dures for EPA Facility Support Activities
6.900 Purpose.
6.901 Definitions.
6.902 Applicability.
6.903 Criteria for preparing EISs.
6.904 Environmental review process.
6.905 Record of decision.
Subpart J—Assessing the Environmental
Effects Abroad of EPA Actions
6.1001 Purpose and policy.
6.1002 Applicability.
6.1003 Definitions.
6.1004 Environmental review and assessment require-
ments.
6.1005 Lead or cooperating agency.
6.1006 Exemptions and considerations.
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§6.100
6.1007 Implementation.
APPENDIX A TO PART 6—STATEMENT OF PROCEDURES
ON FLOODPLAIN MANAGEMENT AND WETLANDS
PROTECTION
AUTHORITY: 42 U.S.C. 4321 et seq., 7401-7671q; 40
CFR part 1500.
SOURCE: 44 FR 64177, Nov. 6, 1979, unless otherwise
noted.
EDITORIAL NOTE: Nomenclature changes affecting part
6 appear at 50 FR 26315, June 25, 1985.
Subpart A—General
§6.100 Purpose and policy.
(a) The National Environmental Policy Act of
1969 (NEPA), 42 U.S.C. 4321 et seq., as imple-
mented by Executive Orders 11514 and 11991 and
the Council on Environmental Quality (CEQ) Reg-
ulations of November 29, 1978 (43 FR 55978) re-
quires that Federal agencies include in their deci-
sion-making processes appropriate and careful
consideration of all environmental effects of pro-
posed actions, analyze potential environmental ef-
fects of proposed actions and their alternatives for
public understanding and scrutiny, avoid or mini-
mize adverse effects of proposed actions, and re-
store and enhance environmental quality as much
as possible. The Environmental Protection Agency
(EPA) shall integrate these NEPA factors as early
in the Agency planning processes as possible. The
environmental review process shall be the focal
point to assure NEPA considerations are taken into
account. To the extent applicable, EPA shall pre-
pare environmental impact statements (EISs) on
those major actions determined to have significant
impact on the quality of the human environment.
This part takes into account the EIS exemptions
set forth under section 511(c)(l) of the Clean
Water Act (Pub. L. 92-500) and section 7(c)(l) of
the Energy Supply and Environmental Coordina-
tion Act of 1974 (Pub. L. 93-319).
(b) This part establishes EPA policy and proce-
dures for the identification and analysis of the en-
vironmental impacts of EPA-related activities and
the preparation and processing of EISs.
§6.101 Definitions.
(a) Terminology. All terminology used in this
part will be consistent with the terms as defined
in 40 CFR part 1508 (the CEQ Regulations). Any
qualifications will be provided in the definitions
set forth in each subpart of this regulation.
(b) The term CEQ Regulations means the regu-
lations issued by the Council on Environmental
Quality on November 29, 1978 (see 43 FR
55978), which implement Executive Order 11991.
The CEQ Regulations will often be referred to
throughout this regulation by reference to 40 CFR
part 1500 et al.
(c) The term environmental review means the
process whereby an evaluation is undertaken by
EPA to determine whether a proposed Agency ac-
tion may have a significant impact on the environ-
ment and therefore require the preparation of the
EIS.
(d) The term environmental information docu-
ment means any written analysis prepared by an
applicant, grantee or contractor describing the en-
vironmental impacts of a proposed action. This
document will be of sufficient scope to enable the
responsible official to prepare an environmental
assessment as described in the remaining subparts
of this regulation.
(e) The term grant as used in this part means
an award of funds or other assistance by a written
grant agreement or cooperative agreement under
40 CFR chapter I, subpart B.
§6.102 Applicability.
(a) Administrative actions covered. This part ap-
plies to the activities of EPA in accordance with
the outline of the subparts set forth below. Each
subpart describes the detailed environmental re-
view procedures required for each action.
(1) Subpart A sets forth an overview of the reg-
ulation. Section 6.102(b) describes the require-
ments for EPA legislative proposals.
(2) Subpart B describes the requirements for the
content of an EIS prepared pursuant to subparts E,
F, G, H, and I.
(3) Subpart C describes the requirements for co-
ordination of all environmental laws during the en-
vironmental review undertaken pursuant to sub-
parts E, F, G, H, and I.
(4) Subpart D describes the public information
requirements which must be undertaken in con-
junction with the environmental review require-
ments under subparts E, F, G, H, and I.
(5) Subpart E describes the environmental re-
view requirements for the wastewater treatment
construction grants program under Title II of the
Clean Water Act.
(6) Subpart F describes the environmental re-
view requirements for new source National Pollut-
ant Discharge Elimination System (NPDES) per-
mits under section 402 of the Clean Water Act.
(7) Subpart G describes the environmental re-
view requirements for research and development
programs undertaken by the Agency.
(8) Subpart H describes the environmental re-
view requirements for solid waste demonstration
projects undertaken by the Agency.
(9) Subpart I describes the environmental re-
view requirements for construction of special pur-
pose facilities and facility renovations by the
Agency.
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§6.103
(b) Legislative proposals. As required by the
CEQ Regulations, legislative EISs are required for
any legislative proposal developed by EPA which
significantly affects the quality of the human envi-
ronment. A preliminary draft EIS shall be prepared
by the responsible EPA office concurrently with
the development of the legislative proposal and
contain information required under subpart B. The
EIS shall be processed in accordance with the re-
quirements set forth under 40 CFR 1506.8.
(c) Application to ongoing activities—(1) Gen-
eral. The effective date for these regulations is
December 5, 1979. These regulations do not apply
to an EIS or supplement to that EIS if the draft
EIS was filed with the Office of External Affairs,
(OEA) before July 30, 1979. No completed envi-
ronmental documents need be redone by reason of
these regulations.
(2) With regard to activities under subpart E,
these regulations shall apply to all EPA environ-
mental review procedures effective December 15,
1979. However, for facility plans begun before
December 15, 1979, the responsible official shall
impose no new requirements on the grantee. Such
grantees shall comply with requirements applicable
before the effective date of this regulation. Not-
withstanding the above, this regulation shall apply
to any facility plan submitted to EPA after Sep-
tember 30, 1980.
[44 FR 64177, Nov. 6, 1979, as amended at 47 FR 9829,
Mar. 8, 1982]
§6.103 Responsibilities.
(a) General responsibilities. (1) The responsible
official's duties include:
(i) Requiring applicants, contractors, and grant-
ees to submit environmental information docu-
ments and related documents and assuring that en-
vironmental reviews are conducted on proposed
EPA projects at the earliest possible point in
EPA's decision-making process. In this regard, the
responsible official shall assure the early involve-
ment and availability of information for private
applicants and other non-Federal entities requiring
EPA approvals.
(ii) When required, assuring that adequate draft
EISs are prepared and distributed at the earliest
possible point in EPA's decision-making process,
their internal and external review is coordinated,
and final EISs are prepared and distributed.
(iii) When an EIS is not prepared, assuring doc-
umentation of the decision to grant a categorical
exclusion, or assuring that findings of no signifi-
cant impact (FNSIs) and environmental assess-
ments are prepared and distributed for those ac-
tions requiring them.
(iv) Consulting with appropriate officials re-
sponsible for other environmental laws set forth in
subpart C.
(v) Consulting with the Office of External Af-
fairs (OEA) on actions involving unresolved con-
flicts concerning this part or other Federal agen-
cies.
(vi) When required, assuring that public partici-
pation requirements are met.
(2) Office of External Affairs duties include: (i)
Supporting the Administrator in providing EPA
policy guidance and assuring that EPA offices es-
tablish and maintain adequate administrative pro-
cedures to comply with this part.
(ii) Monitoring the overall timeliness and qual-
ity of the EPA effort to comply with this part.
(iii) Providing assistance to responsible officials
as required, i.e., preparing guidelines describing
the scope of environmental information required
by private applicants relating to their proposed ac-
tions.
(iv) Coordinating the training of personnel in-
volved in the review and preparation of EISs and
other associated documents.
(v) Acting as EPA liaison with the Council on
Environmental Quality and other Federal and State
entities on matters of EPA policy and administra-
tive mechanisms to facilitate external review of
EISs, to determine lead agency and to improve the
uniformity of the NEPA procedures of Federal
agencies.
(vi) Advising the Administrator and Deputy Ad-
ministrator on projects which involve more than
one EPA office, are highly controversial, are na-
tionally significant, or pioneer EPA policy, when
these projects have had or should have an EIS pre-
pared on them.
(vii) Carrying out administrative duties relating
to maintaining status of EISs within EPA, i.e.,
publication of notices of intent in the FEDERAL
REGISTER and making available to the public sta-
tus reports on EISs and other elements of the envi-
ronmental review process.
(3) Office of an Assistant Administrator duties
include: (i) Providing specific policy guidance to
their respective offices and assuring that those of-
fices establish and maintain adequate administra-
tive procedures to comply with this part.
(ii) Monitoring the overall timeliness and qual-
ity of their respective office's efforts to comply
with this part.
(iii) Acting as liaison between their offices and
the OEA and between their offices and other As-
sistant Administrators or Regional Administrators
on matters of agencywide policy and procedures.
(iv) Advising the Administrator and Deputy Ad-
ministrator through the OEA on projects or activi-
ties within their respective areas of responsibilities
which involve more than one EPA office, are
highly controversial, are nationally significant, or
pioneer EPA policy, when these projects will have
or should have an EIS prepared on them.
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§6.104
(v) Pursuant to §6.102(b) of this subpart, pre-
paring legislative EISs as appropriate on EPA leg-
islative initiatives.
(4) The Office of Policy, Planning, and Evalua-
tion duties include: responsibilities for coordinat-
ing the preparation of EISs required on EPA legis-
lative proposals in accordance with §6.102(b).
(b) Responsibilities for subpart E—(1) Respon-
sible official. The responsible official for EPA ac-
tions covered by this subpart is the Regional Ad-
ministrator.
(2) Assistant Administrator. The responsibilities
of the Assistant Administrator, as described in
§6.103(a)(3), shall be assumed by the Assistant
Administrator for Water for EPA actions covered
by this subpart.
(c) Responsibilities for subpart F—(1) Respon-
sible official. The responsible official for activities
covered by this subpart is the Regional Adminis-
trator.
(2) Assistant Administrator. The responsibilities
of the Assistant Administrator, as described in
§6.103(a)(3), shall be assumed by the Assistant
Administrator for Enforcement and Compliance
Monitoring for EPA actions covered by this sub-
part.
(d) Responsibilities for subpart G. The Assistant
Administrator for Research and Development will
be the responsible official for activities covered by
this subpart.
(e) Responsibilities for subpart H. The Assistant
Administrator for Solid Waste and Emergency Re-
sponse will be the responsible official for activities
covered by this subpart.
(f) Responsibilities for subpart I. The respon-
sible official for new construction and modifica-
tion of special purpose facilities is as follows:
(1) The Chief, Facilities Engineering and Real
Estate Branch, Facilities and Support Services Di-
vision, Office of the Assistant Administrator for
Administration and Resource Management
(OARM) shall be the responsible official on all
new construction of special purpose facilities and
on all new modification projects for which the Fa-
cilities Engineering and Real Estate Branch has re-
ceived a funding allowance and for all other field
components not covered elsewhere in paragraph
(f) of this section.
(2) The Regional Administrator shall be the re-
sponsible official on all improvement and modi-
fication projects for which the regional office has
received the funding allowance.
[44 FR 64177, Nov. 6, 1979, as amended at 47 FR 9829,
Mar. 8, 1982; 50 FR 26315, June 25, 1985; 51 FR 32609,
Sept. 12, 1986]
§6.104 Early involvement of private
parties.
As required by 40 CFR 1501.2(d) and
§6.103(a)(3)(v) of this regulation, responsible offi-
cials must ensure early involvement of private ap-
plicants or other non-Federal entities in the envi-
ronmental review process related to EPA grant and
permit actions set forth under subparts E, F, G,
and H. The responsible official in conjunction with
OEA shall:
(a) Prepare where practicable, generic guidelines
describing the scope and level of environmental
information required from applicants as a basis for
evaluating their proposed actions, and make these
guidelines available upon request.
(b) Provide such guidance on a project-by-
project basis to any applicant seeking assistance.
(c) Upon receipt of an application for agency
approval, or notification that an application will be
filed, consult as required with other appropriate
parties to initiate and coordinate the necessary en-
vironmental analyses.
[44 FR 64177, Nov. 6, 1979, as amended at 47 FR 9829,
Mar. 8, 1982]
§6.105 Synopsis of environmental re-
view procedures.
(a) Responsible official. The responsible official
shall utilize a systematic, interdisciplinary ap-
proach to integrate natural and social sciences as
well as environmental design arts in planning pro-
grams and making decisions which are subject to
environmental review. The respective staffs may
be supplemented by professionals from other agen-
cies (see 40 CFR 1501.6) or consultants whenever
in-house capabilities are insufficiently interdiscipli-
nary.
(b) Environmental information documents
(E1D). Environmental information documents
(EIDs) must be prepared by applicants, grantees,
or permittees and submitted to EPA as required in
subparts E, F, G, H, and I. EIDs will be of suffi-
cient scope to enable the responsible official to
prepare an environmental assessment as described
under §6.105(d) of this part and subparts E
through I. EIDs will not have to be prepared for
actions where a categorical exclusion has been
granted.
(c) Environmental reviews. Environmental re-
views shall be conducted on the EPA activities
outlined in § 6.102 of this part and set forth under
subparts E, F, G, H and I. This process shall con-
sist of a study of the action to identify and evalu-
ate the related environmental impacts. The process
shall include a review of any related environ-
mental information document to determine wheth-
er any significant impacts are anticipated and
whether any changes can be made in the proposed
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§6.107
action to eliminate significant adverse impacts;
when an EIS is required, EPA has overall respon-
sibility for this review, although grantees, appli-
cants, permittees or contractors will contribute to
the review through submission of environmental
information documents.
(d) Environmental assessments. Environmental
assessments (i.e., concise public documents for
which EPA is responsible) are prepared to provide
sufficient data and analysis to determine whether
an EIS or finding of no significant impact is re-
quired. Where EPA determines that a categorical
exclusion is appropriate or an EIS will be pre-
pared, there is no need to prepare a formal envi-
ronmental assessment.
(e) Notice of intent and EISs. When the environ-
mental review indicates that a significant environ-
mental impact may occur and significant adverse
impacts can not be eliminated by making changes
in the project, a notice of intent to prepare an EIS
shall be published in the FEDERAL REGISTER,
scoping shall be undertaken in accordance with 40
CFR 1501.7, and a draft EIS shall be prepared and
distributed. After external coordination and evalua-
tion of the comments received, a final EIS shall be
prepared and disseminated. The final EIS shall list
any mitigation measures necessary to make the
recommended alternative environmentally accept-
able.
(f) Finding of no significant impact (FNSI).
When the environmental review indicates no sig-
nificant impacts are anticipated or when the
project is altered to eliminate any significant ad-
verse impacts, a FNSI shall be issued and made
available to the public. The environmental assess-
ment shall be included as a part of the FNSI. The
FNSI shall list any mitigation measures necessary
to make the recommended alternative environ-
mentally acceptable.
(g) Record of decision. At the time of its deci-
sion on any action for which a final EIS has been
prepared, the responsible official shall prepare a
concise public record of the decision. The record
of decision shall describe those mitigation meas-
ures to be undertaken which will make the se-
lected alternative environmentally acceptable.
Where the final EIS recommends the alternative
which is ultimately chosen by the responsible offi-
cial, the record of decision may be extracted from
the executive summary to the final EIS.
(h) Monitoring. The responsible official shall
provide for monitoring to assure that decisions on
any action where a final EIS has been prepared
are properly implemented. Appropriate mitigation
measures shall be included in actions undertaken
by EPA.
[44 FR 64177, Nov. 6, 1979, as amended at 50 FR
26315, June 25, 1985; 51 FR 32610, Sept. 12, 1986]
§6.106 Deviations.
(a) General. The Assistant Administrator, OEA,
is authorized to approve deviations from these reg-
ulations. Deviation approvals shall be made in
writing by the Assistant Administrator, OEA.
(b) Requirements. (1) Where emergency cir-
cumstances make it necessary to take an action
with significant environmental impact without ob-
serving the substantive provisions of these regula-
tions or the CEQ Regulations, the responsible offi-
cial shall notify the Assistant Administrator, OEA,
before taking such action. The responsible official
shall consider to the extent possible alternative ar-
rangements; such arrangements will be limited to
actions necessary to control the immediate impacts
of the emergency; other actions remain subject to
the environmental review process. The Assistant
Administrator, OEA, after consulting CEQ, will
inform the responsible official, as expeditiously as
possible of the disposition of his request.
(2) Where circumstances make it necessary to
take action without observing procedural provi-
sions of these regulations, the responsible official
shall notify the Assistant Administrator, OEA, be-
fore taking such action. If the Assistant Adminis-
trator, OEA, determines such a deviation would be
in the best interest of the Government, he shall in-
form the responsible official, as soon as possible,
of his approval.
(3) The Assistant Administrator, OEA, shall co-
ordinate his action on a deviation under
§6.106(b)(l) or (2) of this part with the Director,
Grants Administration Division, Office of Plan-
ning and Management, for any required grant-re-
lated deviation under 40 CFR 30.1000, as well as
the appropriate Assistant Administrator.
[44 FR 64177, Nov. 6, 1979, as amended at 47 FR 9829,
Mar. 8, 1982]
§6.107 Categorical exclusions.
(a) General. Categories of actions which do not
individually, cumulatively over time, or in con-
junction with other Federal, State, local, or private
actions have a significant effect on the quality of
the human environment and which have been
identified as having no such effect based on the
requirements in §6.505, may be exempted from
the substantive environmental review requirements
of this part. Environmental information documents
and environmental assessments or environmental
impact statements will not be required for ex-
cluded actions.
(b) Determination. The responsible official shall
determine whether an action is eligible for a cat-
egorical exclusion as established by general cri-
teria in §6.107 (d) and (e) and any applicable cri-
teria in program specific subparts of part 6 of this
title. A determination shall be made as early as
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§6.108
possible following the receipt of an application.
The responsible official shall document the deci-
sion to issue or deny an exclusion as soon as prac-
ticable following review in accordance with
§6.400(f). For qualified actions, the documenta-
tion shall include the application, a brief descrip-
tion of the proposed action, and a brief statement
of how the action meets the criteria for a categor-
ical exclusion without violating criteria for not
granting an exclusion.
(c) Revocation. The responsible official shall re-
voke a categorical exclusion and shall require a
full environmental review if, subsequent to the
granting of an exclusion, the responsible official
determines that: (1) The proposed action no longer
meets the requirements for a categorical exclusion
due to changes in the proposed action; or (2) de-
termines from new evidence that serious local or
environmental issues exist; or (3) that Federal,
State, local, or tribal laws are being or may be
violated.
(d) General categories of actions eligible for ex-
clusion. Actions consistent with any of the follow-
ing categories are eligible for a categorical exclu-
sion:
(1) Actions which are solely directed toward
minor rehabilitation of existing facilities, func-
tional replacement of equipment, or towards the
construction of new ancillary facilities adjacent or
appurtenant to existing facilities;
(2) Other actions specifically allowed in pro-
gram specific subparts of this regulation; or
(3) Other actions developed in accordance with
paragraph (f) of this section.
(e) General criteria for not granting a categor-
ical exclusion. (1) The full environmental review
procedures of this part must be followed if under-
taking an action consistent with allowable cat-
egories in paragraph (d) of this section may in-
volve serious local or environmental issues, or
meets any of the criteria listed below:
(i) The action is known or expected to have a
significant effect on the quality of the human envi-
ronment, either individually, cumulatively over
time, or in conjunction with other federal, State,
local, tribal or private actions;
(ii) The action is known or expected to directly
or indirectly affect:
(A) Cultural resource areas such as archaeologi-
cal and historic sites in accordance with §6.301,
(B) Endangered or threatened species and their
critical habitats in accordance with §6.302 or State
lists,
(C) Environmentally important natural resource
areas such as floodplains, wetlands, important
farmlands, aquifer recharge zones in accordance
with § 6.302, or
(D) Other resource areas identified in supple-
mental guidance issued by the OEA;
(iii) The action is known or expected not to be
cost-effective or to cause significant public con-
troversy; or
(iv) Appropriate specialized program specific
criteria for not granting an exclusion found in
other subparts of this regulation are applicable to
the action.
(2) Notwithstanding the provisions of paragraph
(d) of this section, if any of the conditions cited
in paragraph (e)(l) of this section exist, the re-
sponsible official shall ensure:
(i) That a categorical exclusion is not granted
or, if previously granted, that it is revoked accord-
ing to paragraph (c) of this section;
(ii) That an adequate EID is prepared; and
(iii) That either an environmental assessment
and FNSI or a notice of intent for an EIS and
ROD is prepared and issued.
(f) Developing new categories of excluded ac-
tions. The responsible official, or other interested
parties, may request that a new general or special-
ized program specific category of excluded actions
be created, or that an existing category be amend-
ed or deleted. The request shall be in writing to
the Assistant Administrator, OEA, and shall con-
tain adequate information to support the request.
Proposed new categories shall be developed by
OEA and published in the FEDERAL REGISTER as
a proposed rule, amending paragraph (d) of this
section when the proposed new category applies to
all eligible programs or, amending appropriate
paragraphs in other subparts of this part when the
proposed new category applies to one specific pro-
gram. The publication shall include a thirty (30)
day public comment period. In addition to criteria
for specific programs listed in other subparts of
this part, the following general criteria shall be
considered in evaluating proposals for new cat-
egories:
(1) Any action taken seldom results in the ef-
fects identified in general or specialized program
specific criteria identified through the application
of criteria for not granting a categorical exclusion;
(2) Based upon previous environmental reviews,
actions consistent with the proposed category have
not required the preparation of an EIS; and
(3) Whether information adequate to determine
if a potential action is consistent with the proposed
category will normally be available when needed.
[50 FR 26315, June 25, 1985, as amended at 51 FR
32610, Sept. 12, 1986]
§6.108 Criteria for initiating an EIS.
The responsible official shall assure that an EIS
will be prepared and issued for actions under sub-
parts E, G, H, and I when it is determined that any
of the following conditions exist:
(a) The Federal action may significantly affect
the pattern and type of land use (industrial, com-
-------
§6.203
mercial, agricultural, recreational, residential) or
growth and distribution of population;
(b) The effects resulting from any structure or
facility constructed or operated under the proposed
action may conflict with local, regional or State
land use plans or policies;
(c) The proposed action may have significant
adverse effects on wetlands, including indirect and
cumulative effects, or any major part of a structure
or facility constructed or operated under the pro-
posed action may be located in wetlands;
(d) The proposed action may significantly affect
threatened and endangered species or their habitats
identified in the Department of the Interior's list,
in accordance with §6.302, or a State's list, or a
structure or a facility constructed or operated
under the proposed action may be located in the
habitat;
(e) Implementation of the proposed action or
plan may directly cause or induce changes that
significantly:
(1) Displace population;
(2) Alter the character of existing residential
areas;
(3) Adversely affect a floodplain; or
(4) Adversely affect significant amounts of im-
portant farmlands as defined in requirements in
§6.302(c), or agricultural operations on this land.
(f) The proposed action may, directly, indirectly
or cumulatively have significant adverse effect on
parklands, preserves, other public lands or areas of
recognized scenic, recreational, archaeological, or
historic value; or
(g) The Federal action may directly or through
induced development have a significant adverse
effect upon local ambient air quality, local ambient
noise levels, surface water or groundwater quality
or quantity, water supply, fish, shellfish, wildlife,
and their natural habitats.
[50 FR 26315, June 25, 1985, as amended at 51 FR
32611, Sept. 12, 1986]
Sub pa it B—Content of EISs
§6.200 The environmental
statement.
impact
Preparers of EISs must conform with the re-
quirements of 40 CFR part 1502 in writing EISs.
§6.201 Format.
The format used for EISs shall encourage good
analysis and clear presentation of alternatives, in-
cluding the proposed action, and their environ-
mental, economic and social impacts. The follow-
ing standard format for EISs should be used unless
the responsible official determines that there is a
compelling reason to do otherwise:
(a) Cover sheet;
(b) Executive Summary;
(c) Table of contents;
(d) Purpose of and need for action;
(e) Alternatives including proposed action;
(f) Affected environment;
(g) Environmental consequences of the alter-
natives;
(h) Coordination (includes list of agencies, orga-
nizations, and persons to whom copies of the EIS
are sent);
(i) List of preparers;
(j) Index (commensurate with complexity of
EIS);
(k) Appendices.
§6.202 Executive summary.
The executive summary shall describe in suffi-
cient detail (10-15 pages) the critical facets of the
EIS so that the reader can become familiar with
the proposed project or action and its net effects.
The executive summary shall focus on:
(a) The existing problem;
(b) A brief description of each alternative evalu-
ated (including the preferred and no action alter-
natives) along with a listing of the environmental
impacts, possible mitigation measures relating to
each alternative, and any areas of controversy (in-
cluding issues raised by governmental agencies
and the public); and
(c) Any major conclusions.
A comprehensive summary may be prepared in in-
stances where the EIS is unusually long in nature.
In accordance with 40 CFR 1502.19, the com-
prehensive summary may be circulated in lieu of
the EIS; however, both documents shall be distrib-
uted to any Federal, State and local agencies who
have EIS review responsibilities and also shall be
made available to other interested parties upon re-
quest.
§6.203 Body of EISs.
(a) Purpose and need. The EIS shall clearly
specify the underlying purpose and need to which
EPA is responding. If the action is a request for
a permit or a grant, the EIS shall clearly specify
the goals and objectives of the applicant.
(b) Alternatives including the proposed action.
In addition to 40 CFR 1502.14, the EIS shall dis-
cuss:
(1) Alternatives considered by the applicant.
This section shall include a balanced description
of each alternative considered by the applicant.
These discussions shall include size and location
of facilities, land requirements, operation and
maintenance requirements, auxiliary structures
such as pipelines or transmission lines, and con-
struction schedules. The alternative of no action
shall be discussed and the applicant's preferred
alternative(s) shall be identified. For alternatives
which were eliminated from detailed study, a brief
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§6.204
discussion of the reasons for their having been
eliminated shall be included.
(2) Alternatives available to EPA. EPA alter-
natives to be discussed shall include: (i) Taking an
action; or (ii) taking an action on a modified or al-
ternative project, including an action not consid-
ered by the applicant; and (iii) denying the action.
(3) Alternatives available to other permitting
agencies. When preparing a joint EIS, and if ap-
plicable, the alternatives available to other Federal
and/or State agencies shall be discussed.
(4) Identifying preferred alternative. In the final
EIS, the responsible official shall signify the pre-
ferred alternative.
(c) Affected environment and environmental
consequences of the alternatives. The affected en-
vironment on which the evaluation of each alter-
native shall be based includes, for example, hy-
drology, geology, air quality, noise, biology,
socioeconomics, energy, land use, and archeology
and historic subjects. The discussion shall be
structured so as to present the total impacts of
each alternative for easy comparison among all al-
ternatives by the reader. The effects of a "no ac-
tion" alternative should be included to facilitate
reader comparison of the beneficial and adverse
impacts of other alternatives to the applicant doing
nothing. A description of the environmental setting
shall be included in the "no action" alternative
for the purpose of providing needed background
information. The amount of detail in describing
the affected environment shall be commensurate
with the complexity of the situation and the im-
portance of the anticipated impacts.
(d) Coordination. The EIS shall include:
(1) The objections and suggestions made by
local, State, and Federal agencies before and dur-
ing the EIS review process must be given full con-
sideration, along with the issues of public concern
expressed by individual citizens and interested en-
vironmental groups. The EIS must include discus-
sions of any such comments concerning our ac-
tions, and the author of each comment should be
identified. If a comment has resulted in a change
in the project or the EIS, the impact statement
should explain the reason.
(2) Public participation through public hearings
or scoping meetings shall also be included. If a
public hearing has been held prior to the publica-
tion of the EIS, a summary of the transcript should
be included in this section. For the public hearing
which shall be held after the publication of the
draft EIS, the date, time, place, and purpose shall
be included here.
(3) In the final EIS, a summary of the coordina-
tion process and EPA responses to comments on
the draft EIS shall be included.
[44 FR 64177, Nov. 6, 1979, as amended at 50 FR
26316, June 25, 1985]
§6.204 Incorporation by reference.
In addition to 40 CFR 1502.21, material incor-
porated into an EIS by reference shall be orga-
nized to the extent possible into a Supplemental
Information Document and be made available for
review upon request. No material may be incor-
porated by reference unless it is reasonably avail-
able for inspection by potentially interested per-
sons within the period allowed for comment.
§6.205 List of preparers.
When the EIS is prepared by contract, either
under direct contract to EPA or through an appli-
cant's or grantee's contractor, the responsible offi-
cial must independently evaluate the EIS prior to
its approval and take responsibility for its scope
and contents. The EPA officials who undertake
this evaluation shall also be described under the
list of preparers.
Subpart C—Coordination With
Other Environmental Review
and Consultation Require-
ments
§ 6.300 General.
Various Federal laws and executive orders ad-
dress specific environmental concerns. The respon-
sible official shall integrate to the greatest prac-
ticable extent the applicable procedures in this
subpart during the implementation of the environ-
mental review process under Subparts E through I.
This subpart presents the central requirements of
these laws and executive orders. It refers to the
pertinent authority and regulations or guidance that
contain the procedures. These laws and executive
orders establish review procedures independent of
NEPA requirements. The responsible official shall
be familiar with any other EPA or appropriate
agency procedures implementing these laws and
executive orders.
[44 FR 64177, Nov. 6, 1979, as amended at 50 FR
26316, June 25, 1985]
§6.301 Landmarks, historical, and ar-
cheological sites.
EPA is subject to the requirements of the His-
toric Sites Act of 1935, 16 U.S.C. 461 et seq., the
National Historic Preservation Act of 1966, as
amended, 16 U.S.C. 470 et seq., the Archaeologi-
cal and Historic Preservation Act of 1974, 16
U.S.C. 469 et seq., and Executive Order 11593,
entitled "Protection and Enhancement of the Cul-
tural Environment." These statutes, regulations
and executive orders establish review procedures
independent of NEPA requirements.
(a) National natural landmarks. Under the His-
toric Sites Act of 1935, the Secretary of the Inte-
-------
§6.302
rior is authorized to designate areas as national
natural landmarks for listing on the National Reg-
istry of Natural Landmarks. In conducting an envi-
ronmental review of a proposed EPA action, the
responsible official shall consider the existence
and location of natural landmarks using informa-
tion provided by the National Park Service pursu-
ant to 36 CFR 62.6(d) to avoid undesirable im-
pacts upon such landmarks.
(b) Historic, architectural, archeological, and
cultural sites. Under section 106 of the National
Historic Preservation Act and Executive Order
11593, if an EPA undertaking affects any property
with historic, architectural, archeological or cul-
tural value that is listed on or eligible for listing
on the National Register of Historic Places, the re-
sponsible official shall comply with the procedures
for consultation and comment promulgated by the
Advisory Council on Historic Preservation in 36
CFR part 800. The responsible official must iden-
tify properties affected by the undertaking that are
potentially eligible for listing on the National Reg-
ister and shall request a determination of eligibility
from the Keeper of the National Register, Depart-
ment of the Interior, under the procedures in 36
CFR part 63.
(c) Historic, prehistoric and archeological data.
Under the Archeological and Historic Preservation
Act, if an EPA activity may cause irreparable loss
or destruction of significant scientific, prehistoric,
historic or archeological data, the responsible offi-
cial or the Secretary of the Interior is authorized
to undertake data recovery and preservation activi-
ties. Data recovery and preservation activities shall
be conducted in accordance with implementing
procedures promulgated by the Secretary of the In-
terior. The National Park Service has published
technical standards and guidelines regarding ar-
cheological preservation activities and methods at
48 FR 44716 (September 29, 1983).
[44 FR 64177, Nov. 6, 1979, as amended at 50 FR
26316, June 25, 1985]
§ 6.302 Wetlands, floodplains, impor-
tant farmlands, coastal zones, wild
and scenic rivers, fish and wildlife,
and endangered species.
The following procedures shall apply to EPA
administrative actions in programs to which the
pertinent statute or executive order applies.
(a) Wetlands protection. Executive Order 11990,
Protection of Wetlands, requires Federal agencies
conducting certain activities to avoid, to the extent
possible, the adverse impacts associated with the
destruction or loss of wetlands and to avoid sup-
port of new construction in wetlands if a prac-
ticable alternative exists. EPA's Statement of Pro-
cedures on Floodplain Management and Wetlands
Protection (dated January 5, 1979, incorporated as
appendix A hereto) requires EPA programs to de-
termine if proposed actions will be in or will af-
fect wetlands. If so, the responsible official shall
prepare a floodplains/wetlands assessment, which
will be part of the environmental assessment or
environmental impact statement. The responsible
official shall either avoid adverse impacts or mini-
mize them if no practicable alternative to the ac-
tion exists.
(b) Floodplain management. Executive Order
11988, Floodplain Management, requires Federal
agencies to evaluate the potential effects of actions
they may take in a floodplain to avoid, to the ex-
tent possible, adverse effects associated with direct
and indirect development of a floodplain. EPA's
Statement of Procedures on Floodplain Manage-
ment and Wetlands Protection (dated January 5,
1979, incorporated as appendix A hereto), requires
EPA programs to determine whether an action will
be located in or will affect a floodplain. If so, the
responsible official shall prepare a floodplain/wet-
lands assessment. The assessment will become part
of the environmental assessment or environmental
impact statement. The responsible official shall ei-
ther avoid adverse impacts or minimize them if no
practicable alternative exists.
(c) Important farmlands. It is EPA's policy as
stated in the EPA Policy To Protect Environ-
mentally Significant Agricultural Lands, dated
September 8, 1978, to consider the protection of
the Nation's significant/important agricultural
lands from irreversible conversion to uses which
result in its loss as an environmental or essential
food production resource. In addition the Farmland
Protection Policy Act, (FPPA) 7 U.S.C. 4201 et
seq., requires federal agencies to use criteria de-
veloped by the Soil Conservation Service, U.S.
Department of Agriculture, to:
(1) Identify and take into account the adverse
effects of their programs on the preservation of
farmlands from conversion to other uses; (2) con-
sider alternative actions, as appropriate, that could
lessen such adverse impacts; and (3) assure that
their programs, to the extent possible, are compat-
ible with State and local government and private
programs and policies to protect farmlands. If an
EPA action may adversely impact farmlands
which are classified prime, unique or of State and
local importance as defined in the Act, the respon-
sible official shall in all cases apply the evaluative
criteria promulgated by the U.S. Department of
Agriculture at 7 CFR part 658. If categories of im-
portant farmlands, which include those defined in
both the FPPA and the EPA policy, are identified
in the project study area, both direct and indirect
effects of the undertaking on the remaining farms
and farm support services within the project area
and immediate environs shall be evaluated. Ad-
-------
§6.302
verse effects shall be avoided or mitigated to the
extent possible.
(d) Coastal zone management. The Coastal
Zone Management Act, 16 U.S.C. 1451 et seq., re-
quires that all Federal activities in coastal areas be
consistent with approved State Coastal Zone Man-
agement Programs, to the maximum extent pos-
sible. If an EPA action may affect a coastal zone
area, the responsible official shall assess the im-
pact of the action on the coastal zone. If the action
significantly affects the coastal zone area and the
State has an approved coastal zone management
program, a consistency determination shall be
sought in accordance with procedures promulgated
by the Office of Coastal Zone Management in 15
CFR part 930.
(e) Wild and scenic rivers. (1) The Wild and
Scenic Rivers Act, 16 U.S.C. 1274 et seq., estab-
lishes requirements applicable to water resource
projects affecting wild, scenic or recreational riv-
ers within the National Wild and Scenic Rivers
system as well as rivers designated on the Na-
tional Rivers Inventory to be studied for inclusion
in the national system. Under the Act, a federal
agency may not assist, through grant, loan, license
or otherwise, the construction of a water resources
project that would have a direct and adverse effect
on the values for which a river in the National
System or study river on the National Rivers In-
ventory was established, as determined by the Sec-
retary of the Interior for rivers under the jurisdic-
tion of the Department of the Interior and by the
Secretary of Agriculture for rivers under the juris-
diction of the Department of Agriculture. Nothing
contained in the foregoing sentence, however,
shall:
(i) Preclude licensing of, or assistance to, devel-
opments below or above a wild, scenic or rec-
reational river area or on any stream tributary
thereto which will not invade the area or unrea-
sonably diminish the scenic, recreational, and fish
and wildlife values present in the area on October
2, 1968; or
(ii) Preclude licensing of, or assistance to, de-
velopments below or above a study river or any
stream tributary thereto which will not invade the
area or diminish the scenic, recreational and fish
and wildlife values present in the area on October
2, 1968.
(2) The responsible official shall:
(i) Determine whether there are any wild, scenic
or study rivers on the National Rivers Inventory or
in the planning area, and
(ii) Not recommend authorization of any water
resources project that would have a direct and ad-
verse effect on the values for which such river
was established, as determined by the administer-
ing Secretary in request of appropriations to begin
construction of any such project, whether here-
tofore or hereafter authorized, without advising the
administering Secretary, in writing of this inten-
tion at least sixty days in advance, and without
specifically reporting to the Congress in writing at
the time the recommendation or request is made in
what respect construction of such project would be
in conflict with the purposes of the Wild and Sce-
nic Rivers Act and would affect the component
and the values to be protected by the Responsible
Official under the Act.
(3) Applicable consultation requirements are
found in section 7 of the Act. The Department of
Agriculture has promulgated implementing proce-
dures, under section 7 at 36 CFR part 297, which
apply to water resource projects located within,
above, below or outside a wild and scenic river or
study river under the Department's jurisdiction.
(f) Barrier islands. The Coastal Barrier Re-
sources Act, 16 U.S.C. 3501 et seq., generally pro-
hibits new federal expenditures or financial assist-
ance for any purpose within the Coastal Barrier
Resources System on or after October 18, 1982.
Specified exceptions to this prohibition are al-
lowed only after consultation with the Secretary of
the Interior. The responsible official shall ensure
that consultation is carried out with the Secretary
of the Interior before making available new ex-
penditures or financial assistance for activities
within areas covered by the Coastal Barriers Re-
sources Act in accord with the U.S. Fish and
Wildlife Service published guidelines defining new
expenditures and financial assistance, and describ-
ing procedures for consultation at 48 FR 45664
(October 6, 1983).
(g) Fish and wildlife protection. The Fish and
Wildlife Coordination Act, 16 U.S.C. 661 et seq.,
requires Federal agencies involved in actions that
will result in the control or structural modification
of any natural stream or body of water for any
purpose, to take action to protect the fish and
wildlife resources which may be affected by the
action. The responsible official shall consult with
the Fish and Wildlife Service and the appropriate
State agency to ascertain the means and measures
necessary to mitigate, prevent and compensate for
project-related losses of wildlife resources and to
enhance the resources. Reports and recommenda-
tions of wildlife agencies should be incorporated
into the environmental assessment or environ-
mental impact statement. Consultation procedures
are detailed in 16 U.S.C. 662.
(h) Endangered species protection. Under the
Endangered Species Act, 16 U.S.C. 1531 et seq.,
Federal agencies are prohibited from jeopardizing
threatened or endangered species or adversely
modifying habitats essential to their survival. The
responsible official shall identify all designated en-
dangered or threatened species or their habitat that
may be affected by an EPA action. If listed spe-
10
-------
cies or their habitat may be affected, formal con-
sultation must be undertaken with the Fish and
Wildlife Service or the National Marine Fisheries
Service, as appropriate. If the consultation reveals
that the EPA activity may jeopardize a listed spe-
cies or habitat, mitigation measures should be con-
sidered. Applicable consultation procedures are
found in 50 CFR part 402.
[44 FR 64177, Nov. 6,
26316, June 25, 1985]
1979, as amended at 50 FR
§ 6.303 Air quality.
(a) The Clean Air Act, as amended in 1990, 42
U.S.C. 7476(c), requires Federal actions to con-
form to any State implementation plan approved
or promulgated under section 110 of the Act. For
EPA actions, the applicable conformity require-
ments specified in 40 CFR part 51, subpart W, 40
CFR part 93, subpart B, and the applicable State
implementation plan must be met.
§ 6.400
(b) In addition, with regard to wastewater treat-
ment works subject to review under Subpart E of
this part, the responsible official shall consider the
air pollution control requirements specified in sec-
tion 316(b) of the Clean Air Act, 42 U.S.C. 7616,
and Agency implementation procedures.
(c)-(g) [Reserved]
[58 FR 63247, Nov. 30, 1993]
Subpart D—Public and Other
Federal Agency Involvement
§6.400 Public involvement.
(a) General. EPA shall make diligent efforts to
involve the public in the environmental review
process consistent with program regulations and
EPA policies on public participation. The
responsibile official shall ensure that public notice
is provided for in accordance with 40 CFR
1506.6(b) and shall ensure that public involvement
is carried
11
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§6.401
out in accordance with EPA Public Participation
Regulations, 40 CFR part 25, and other applicable
EPA public participation procedures.
(b) Publication of notices of intent. As soon as
practicable after his decision to prepare an EIS
and before the scoping process, the responsible of-
ficial shall send the notice of intent to interested
and affected members of the public and shall re-
quest the OEA to publish the notice of intent in
the FEDERAL REGISTER. The responsible official
shall send to OEA the signed original notice of in-
tent for FEDERAL REGISTER publication purposes.
The scoping process should be initiated as soon as
practicable in accordance with the requirements of
40 CFR 1501.7. Participants in the scoping proc-
ess shall be kept informed of substantial changes
which evolve during the EIS drafting process.
(c) Public meetings or hearings. Public meet-
ings or hearings shall be conducted consistent with
Agency program requirements. There shall be a
presumption that a scoping meeting will be con-
ducted whenever a notice of intent has been pub-
lished. The responsible official shall conduct a
public hearing on a draft EIS. The responsible of-
ficial shall ensure that the draft EIS is made avail-
able to the public at least 30 days in advance of
the hearing.
(d) Findings of no significant impact (FNS1).
The responsible official shall allow for sufficient
public review of a FNSI before it becomes effec-
tive. The FNSI and attendant publication must
state that interested persons disagreeing with the
decision may submit comments to EPA. The re-
sponsible official shall not take administrative ac-
tion on the project for at least thirty (30) calendar
days after release of the FNSI and may allow
more time for response. The responsible official
shall consider, fully, comments submitted on the
FNSI before taking administrative action. The
FNSI shall be made available to the public in ac-
cordance with the requirements and all appropriate
recommendations contained in §1506.6 of this
title.
(e) Record of Decision (ROD). The responsible
official shall disseminate the ROD to those parties
which commented on the draft or final EIS.
(f) Categorical exclusions. (1) For categorical
exclusion determinations under subpart E
(Wastewater Treatment Construction Grants Pro-
gram), an applicant who files for and receives a
determination of categorical exclusion under
§6.107(a), or has one rescinded under §6.107(c),
shall publish a notice indicating the determination
of eligibility or rescission in a local newspaper of
community-wide circulation and indicate the avail-
ability of the supporting documentation for public
inspection. The responsible official shall, concur-
rent with the publication of the notice, make the
documentation as outlined in §6.107(b) available
to the public and distribute the notice of the deter-
mination to all known interested parties.
(2) For categorical exclusion determinations
under other subparts of this regulation, no public
notice need be issued; however, information re-
garding these determinations may be obtained by
contacting the U.S. Environmental Protection
Agency's Office of Research Program Manage-
ment for ORD actions, or the Office of Federal
Activities for other program actions.
[44 FR 64177, Nov. 6, 1979, as amended at 51 FR
32611, Sept. 12, 1986; 56 FR 20543, May 6, 1991]
§6.401 Official filing requirements.
(a) General. OEA is responsible for the conduct
of the official filing system for EISs. This system
was established as a central repository for all EISs
which serves not only as means of advising the
public of the availability of each EIS but provides
a uniform method for the computation of mini-
mum time periods for the review of EISs. OEA
publishes a weekly notice in the FEDERAL REG-
ISTER listing all EISs received during a given
week. The 45-day and 30-day review periods for
draft and final EISs, respectively, are computed
from the Friday following a given reporting week.
Pursuant to 40 CFR 1506.9, responsible officials
shall comply with the guidelines established by
OEA on the conduct of the filing system.
(b) Minimum time periods. No decision on EPA
actions shall be made until the later of the follow-
ing dates:
(1) Ninety (90) days after the date established
in §6.401 (a) of this part from which the draft EIS
review time period is computed.
(2) Thirty (30) days after the date established in
§6.401(a) of this part from which the final EIS re-
view time period is computed.
(c) Filing of EISs. All EISs, including supple-
ments, must be officially filed with OEA. Respon-
sible officials shall transmit each EIS in five (5)
copies to the Director, Office of Environmental
Review, EIS Filing Section (A-104). OEA will
provide CEQ with one copy of each EIS filed. No
EIS will be officially filed by OER unless the EIS
has been made available to the public. OEA will
not accept unbound copies of EISs for filing.
(d) Extensions or waivers. The responsible offi-
cial may independently extend review periods. In
such cases, the responsible official shall notify
OEA as soon as possible so that adequate notice
may be published in the weekly FEDERAL REG-
ISTER report. OEA upon a showing of compelling
reasons of national policy may reduce the pre-
scribed review periods. Also, OEA upon a show-
ing by any other Federal agency of compelling
reasons of national policy may extend prescribed
review periods, but only after consultation with the
responsible official. If the responsible official does
12
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§6.501
not concur with the extension of time, OEA may
not extend a prescribed review period more than
30 days beyond the minimum prescribed review
period.
(e) Rescission of filed EISs. The responsible of-
ficial shall file EISs with OEA at the same time
they are transmitted to commenting agencies and
made available to the public. The responsible offi-
cial is required to reproduce an adequate supply of
EISs to satisfy these distribution requirements
prior to filing an EIS. If the EIS is not made avail-
able, OEA will consider retraction of the EIS or
revision of the prescribed review periods based on
the circumstances.
[44 FR 64177, Nov. 6, 1979, as amended at 47 FR 9829,
Mar. 8, 1982]
§6.402 Availability of documents.
(a) General. The responsible official will ensure
sufficient copies of the EIS are distributed to inter-
ested and affected members of the public and are
made available for further public distribution.
EISs, comments received, and any underlying doc-
uments should be available to the public pursuant
to the provisions of the Freedom of Information
Act (5 U.S.C. 552(b)), without regard to the exclu-
sion for interagency memoranda where such
memoranda transmit comments of Federal agen-
cies on the environmental impact of the proposed
actions. To the extent practicable, materials made
available to the public shall be provided without
charge; otherwise, a fee may be imposed which is
not more than the actual cost of reproducing cop-
ies required to be sent to another Federal agency.
(b) Public information. Lists of all notices, de-
terminations and other reports/documentation, re-
lated to these notices and determinations, involv-
ing CEs, EAs, FNSIs, notices of intent, EISs, and
RODs prepared by EPA shall be available for pub-
lic inspection and maintained by the responsible
official as a monthly status report. OEA shall
maintain a comprehensive list of notices of intent
and draft and final EISs provided by all respon-
sible officials for public inspection including pub-
lication in the FEDERAL REGISTER. In addition,
OEA will make copies of all EPA-prepared EISs
available for public inspection; the responsible of-
ficial shall do the same for any EIS he/she under-
takes.
[44 FR 64177, Nov. 6, 1979, as amended at 51 FR
32611, Sept. 12, 1986]
§6.403 The commenting process.
(a) Inviting comments. After preparing a draft
EIS and before preparing a final EIS, the respon-
sible official shall obtain the comments of Federal
agencies, other governmental entities and the pub-
lic in accordance with 40 CFR 1503.1.
(b) Response to comments. The responsible offi-
cial shall respond to comments in the final EIS in
accordance with 40 CFR 1503.4.
§6.404 Supplements.
(a) General. The responsible official shall con-
sider preparing supplements to draft and final EISs
in accordance with 40 CFR 1502.9(c). A supple-
ment shall be prepared, circulated and filed in the
same fashion (exclusive of scoping) as draft and
final EISs.
(b) Alternative procedures. In the case where
the responsible official wants to deviate from ex-
isting procedures, OEA shall be consulted. OEA
shall consult with CEQ on any alternative arrange-
ments.
[44 FR 64177, Nov. 6, 1979, as amended at 47 FR 9829,
Mar. 8, 1982]
Subpart E—Environmental Review
Procedures for Waste water
Treatment Construction Grants
Program
SOURCE: 50 FR 26317, June 25, 1985, unless otherwise
noted.
§6.500 Purpose.
This subpart amplifies the procedures described
in subparts A through D with detailed environ-
mental review procedures for the Municipal
Wastewater Treatment Works Construction Grants
Program under Title II of the Clean Water Act.
§6.501 Definitions.
(a) Step 1 facilities planning means preparation
of a plan for facilities as described in 40 CFR part
35, subpart E or I.
(b) Step 2 means a project to prepare design
drawings and specifications as described in 40
CFR part 35, subpart E or I.
(c) Step 3 means a project to build a publicly
owned treatment works as described in 40 CFR
part 35, subpart E or I.
(d) Step 2+3 means a project which combines
preparation of design drawings and specifications
as described in §6.501(b) and building as de-
scribed in §6.501(c).
(e) Applicant means any individual, agency, or
entity which has filed an application for grant as-
sistance under 40 CFR part 35, subpart E or I.
(f) Grantee means any individual, agency, or
entity which has been awarded wastewater treat-
ment construction grant assistance under 40 CFR
part 35, subpart E or I.
(g) Responsible Official means a Federal or
State official authorized to fulfill the requirements
of this subpart. The responsible federal official is
13
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§6.502
the EPA Regional Administrator and the respon-
sible State official is as defined in a delegation
agreement under 205(g) of the Clean Water Act.
The responsibilities of the State official are subject
to the limitations in §6.514 of this subpart.
(h) Approval of the facilities plan means ap-
proval of the facilities plan for a proposed
wastewater treatment works pursuant to 40 CFR
part 35, subpart E or I.
§6.502 Applicability and limitations.
(a) Applicability. This subpart applies to the fol-
lowing actions:
(1) Approval of a facilities plan or an amend-
ment to the plan;
(2) Award of grant assistance for a project
where signficant change has occurred in the
project or its impact since prior compliance with
this part; and
(3) Approval of preliminary Step 3 work prior
to the award of grant assistance pursuant to 40
CFR part 35, subpart E or I.
(b) Limitations. (1) Except as provided in
§6.504(c), all recipients of Step 1 grant assistance
must comply with the requirements, steps, and
procedures described in this subpart.
(2) As specified in 40 CFR 35.2113, projects
that have not received Step 1 grant assistance must
comply with the requirements of this subpart prior
to submission of an application for Step 3 or Step
2+3 grant assistance.
(3) Except as otherwise provided in §6.507, no
step 3 or 2+3 grant assistance may be awarded for
the construction of any component/portion of a
proposed wastewater treatment system(s) until the
responsible official has:
(i) Completed the environmental review for all
complete wastewater treatment system alternatives
under consideration for the facilities planning area,
or any larger study area identified for the purposes
of conducting an adequate environmental review
as required under this subpart; and
(ii) Recorded the selection of the preferred
alternative(s) in the appropriate decision document
(ROD for EISs, FNSI for environmental assess-
ments, or written determination for categorical ex-
clusions).
(4) In accord with §6.302(f), on or after Octo-
ber 18, 1982, no new expenditures or financial as-
sistance involving the construction grants program
can be made within the Coastal Barrier Resource
System, or for projects outside the system which
would have the effect of encouraging development
in the system, other than specified exceptions
made by the EPA after consultation with the Sec-
retary of the Interior.
[50 FR 26317, June 25, 1985, as amended at 51 FR
32611, Sept. 12, 1986]
§6.503 Overview of the environmental
review process.
The process for conducting an environmental re-
view of wastewater treatment construction grant
projects includes the following steps:
(a) Consultation. The Step 1 grantee or the po-
tential Step 3 or Step 2+3 applicant is encouraged
to consult with the State and EPA early in project
formulation or the facilities planning stage to de-
termine whether a project is eligible for a categor-
ical exclusion from the remaining substantive en-
vironmental review requirements of this part
(§6.505), to determine alternatives to the proposed
project for evaluation, to identify potential envi-
ronmental issues and opportunities for public
recreation and open space, and to determine the
potential need for partitioning the environmental
review process and/or the need for an Environ-
mental Impact Statement (EIS).
(b) Determining categorical exclusion eligibility.
At the request of a potential Step 3 or Step 2+3
grant applicant, or a Step 1 facilities planning
grantee, the responsible official will determine if a
project is eligible for a categorical exclusion in ac-
cordance with §6.505. A Step 1 facilities planning
grantee awarded a Step 1 grant on or before De-
cember 29, 1981 may request a categorical exclu-
sion at any time during Step 1 facilities planning.
A potential Step 3 or Step 2+3 grant applicant
may request a categorical exclusion at any time
before the submission of a Step 3 or Step 2+3
grant application.
(c) Documenting environmental information. If
the project is determined to be ineligible for a cat-
egorical exclusion, or if no request for a categor-
ical exclusion is made, the potential Step 3 or Step
2+3 applicant or the Step 1 grantee subsequently
prepares an Environmental Information Document
(BID) (§6.506) for the project.
(d) Preparing environmental assessments. Ex-
cept as provided in §6.506(c)(4) and following a
review of the BID by EPA or by a State with del-
egated authority, EPA prepares an environmental
assessment (§6.506), or a State with delegated au-
thority (§6.514) prepares a preliminary environ-
mental assessment. EPA reviews and finalizes any
preliminary assessments. EPA subsequently:
(1) Prepares and issues a Finding of No Signifi-
cant Impact (FNSI) (§6.508); or
(2) Prepares and issues a Notice of Intent to
prepare an original or supplemental EIS (§6.510)
and Record of Decision (ROD) (§6.511).
(e) Monitoring. The construction and post-con-
struction operation and maintenance of the facili-
ties are monitored (§6.512) to ensure implementa-
tion of mitigation measures (§6.511) identified in
the FNSI or ROD.
[50 FR 26317, June 25, 1985, as amended at 51 FR
32611, Sept. 12, 1986]
14
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§6.505
§6.504 Consultation during the facili-
ties planning process.
(a) General. Consistent with 40 CFR 1501.2
and 35.2030(c), the responsible official shall initi-
ate the environmental review process early to
identify environmental effects, avoid delays, and
resolve conflicts. The environmental review proc-
ess should be integrated throughout the facilities
planning process. Two processes for consultation
are described in this section to meet this objective.
The first addresses projects awarded Step 1 grant
assistance on or before December 29, 1981. The
second applies to projects not receiving grant as-
sistance for facilities planning on or before De-
cember 29, 1981 and, therefore, subject to the reg-
ulations implementing the Municipal Wastewater
Treatment Construction Grant Amendments of
1981 (40 CFR part 35, subpart I).
(b) Projects receiving Step 1 grant assistance
on or before December 29, 1981. (1) During fa-
cilities planning, the grantee shall evaluate project
alternatives and the existence of environmentally
important resource areas including those identified
in §6.108 and §6.509 of this subpart, and poten-
tial for open space and recreation opportunities in
the facilities planning area. This evaluation is in-
tended to be brief and concise and should draw on
existing information from EPA, State agencies, re-
gional planning agencies, areawide water quality
management agencies, and the Step 1 grantee. The
Step 1 grantee should submit this information to
EPA or a delegated State at the earliest possible
time during facilities planning to allow EPA to de-
termine if the action is eligible for a categorical
exclusion. The evaluation and any additional anal-
ysis deemed necessary by the responsible official
may be used by EPA to determine whether the ac-
tion is eligible for a categorical exclusion from the
substantive environmental review requirements of
this part. If a categorical exclusion is granted, the
grantee will not be required to prepare a formal
EID nor will the responsible official be required to
prepare an environmental assessment under NEPA.
If an action is not granted a categorical exclusion,
this evaluation may be used to determine the
scope of the EID required of the grantee. This in-
formation can also be used to make an early deter-
mination of the need for partitioning the environ-
mental review or for an EIS. Whenever possible,
the Step 1 grantee should discuss this initial eval-
uation with both the delegated State and EPA.
(2) A review of environmental information de-
veloped by the grantee should be conducted by the
responsible official whenever meetings are held to
assess the progress of facilities plan development.
These meetings should be held after completion of
the majority of the EID document and before a
preferred alternative is selected. Since any required
EIS must be completed before the approval of a
facilities plan, a decision whether to prepare an
EIS is encouraged early during the facilities plan-
ning process. These meetings may assist in this
early determination. EPA should inform interested
parties of the following:
(i) The preliminary nature of the Agency's posi-
tion on preparing an EIS;
(ii) The relationship between the facilities plan-
ning and environmental review processes;
(iii) The desirability of public input; and
(iv) A contact person for further information.
(c) Projects not receiving grant assistance for
Step 1 facilities planning on or before December
29, 1981. Potential Step 3 or Step 2+3 grant appli-
cants should, in accordance with §35.2030(c),
consult with EPA and the State early in the facili-
ties planning process to determine the appropriate-
ness of a categorical exclusion, the scope of an
EID, or the appropriateness of the early prepara-
tion of an environmental assessment or an EIS.
The consultation would be most useful during the
evaluation of project alternatives prior to the selec-
tion of a preferred alternative to assist in resolving
any identified environmental problems.
§6.505 Categorical exclusions.
(a) General. At the request of an existing Step
1 facilities planning grantee or of a potential Step
3 or Step 2+3 grant applicant, the responsible offi-
cial, as provided for in §§6.107(b), 6.400(f) and
6.504(a), shall determine from existing information
and document whether an action is consistent with
the categories eligible for exclusion from NEPA
review identified in §6.107(d) or §6.505(b) and
not inconsistent with the criteria in §6.107(e) or
§6.505(c).
(b) Specialized categories of actions eligible for
exclusion. For this subpart, eligible actions consist
of any of the categories in §6.107(d), or:
(1) Actions for which the facilities planning is
consistent with the category listed in §6.107(d)(l)
which do not affect the degree of treatment or ca-
pacity of the existing facility including, but not
limited to, infiltration and inflow corrections,
grant-eligible replacement of existing mechanical
equipment or structures, and the construction of
small structures on existing sites;
(2) Actions in sewered communities of less than
10,000 persons which are for minor upgrading and
minor expansion of existing treatment works. This
category does not include actions that directly or
indirectly involve the extension of new collection
systems funded with federal or other sources of
funds;
(3) Actions in unsewered communities of less
than 10,000 persons where on-site technologies are
proposed; or
(4) Other actions are developed in accordance
with § 6.107(f).
15
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§6.506
(c) Specialized Criteria for not granting a cat-
egorical exclusion. (1) The full environmental re-
view procedures of this part must be followed if
undertaking an action consistent with the cat-
egories described in paragraph (b) of this section
meets any of the criteria listed in § 6.107(e) or
when:
(i) The facilities to be provided will (A) create
a new, or (B) relocate an existing, discharge to
surface or ground waters;
(ii) The facilities will result in substantial in-
creases in the volume of discharge or the loading
of pollutants from an existing source or from new
facilities to receiving waters; or
(iii) The facilities would provide capacity to
serve a population 30% greater than the existing
population.
(d) Proceeding with grant awards. (1) After a
categorical exclusion on a proposed treatment
works has been granted, and notices published in
accordance with §6.400(f), grant awards may pro-
ceed without being subject to any further environ-
mental review requirements under this part, unless
the responsible official later determines that the
project, or the conditions at the time the categor-
ical determination was made, have changed sig-
nificantly since the independent EPA review of in-
formation submitted by the grantee in support of
the exclusion.
(2) For all categorical exclusion determinations:
(i) That are five or more years old on projects
awaiting Step 2+3 or Step 3 grant funding, the re-
sponsible official shall re-evaluate the project, en-
vironmental conditions and public views and, prior
to grant award, either:
(A) Reaffirm—issue a public notice reaffirming
EPA's decision to proceed with the project with-
out need for any further environmental review;
(B) Supplement—update the information in the
decision document on the categorically excluded
project and prepare, issue, and distribute a revised
notice in accordance with § 6.107(f); or
(C) Reassess—revoke the categorical exclusion
in accordance with §6.107(c) and require a com-
plete environmental review to determine the need
for an EIS in accordance with §6.506, followed
by preparation, issuance and distribution of an EA/
FNSI or EIS/ROD.
(ii) That are made on projects that have been
awarded a Step 2+3 grant, the responsible official
shall, at the time of plans and specifications re-
view under §35.2202(b) of this title, assess wheth-
er the environmental conditions or the project's
anticipated impact on the environment have
changed and, prior to plans and specifications ap-
proval, advise the Regional Administrator if addi-
tional environmental review is necessary.
[50 FR 26317, June 25, 1985, as amended at 51 FR
32611, Sept. 12, 1986]
§6.506 Environmental review process.
(a) Review of completed facilities plans. The re-
sponsible official shall ensure a review of the
completed facilities plan with particular attention
to the EID and its utilization in the development
of alternatives and the selection of a preferred al-
ternative. An adequate EID shall be an integral
part of any facilities plan submitted to EPA or to
a State. The EID shall be of sufficient scope to en-
able the responsible official to make determina-
tions on requests for partitioning the environ-
mental review process in accordance with §6.507
and for preparing environmental assessments in
accordance with §6.506(b).
(b) Environmental assessment. The environ-
mental assessment process shall cover all poten-
tially significant environmental impacts. The re-
sponsible official shall prepare a preliminary envi-
ronmental assessment on which to base a rec-
ommendation to finalize and issue the environ-
mental assessment/FNSI. For those States dele-
gated environmental review responsibilities under
§6.514, the State responsible official shall prepare
the preliminary environmental assessment in suffi-
cient detail to serve as an adequate basis for
EPA's independent NEPA review and decision to
finalize and issue an environmental assessment/
FNSI or to prepare and issue a notice of intent for
an EIS/ROD. The EPA also may require submis-
sion of supplementary information before the fa-
cilities plan is approved if needed for its independ-
ent review of the State's preliminary assessment
for compliance with environmental review require-
ments. Substantial requests for supplementary in-
formation by EPA, including the review of the fa-
cilities plan, shall be made in writing. Each of the
following subjects outlined below, and require-
ments of subpart C of this part, shall be reviewed
by the responsible official to identify potentially
significant environmental concerns and their asso-
ciated potential impacts, and the responsible offi-
cial shall furthermore address these concerns and
impacts in the environmental assessment:
(1) Description of the existing environment. For
the delineated facilities planning area, the existing
environmental conditions relevant to the analysis
of alternatives, or to determining the environ-
mental impacts of the proposed action, shall be
considered.
(2) Description of the future environment with-
out the project. The relevant future environmental
conditions shall be described. The no action alter-
native should be discussed.
(3) Purpose and need. This should include a
summary discussion and demonstration of the
need, or absence of need, for wastewater treatment
in the facilities planning area, with particular em-
phasis on existing public health or water quality
problems and their severity and extent.
16
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§6.506
(4) Documentation. Citations to information
used to describe the existing environment and to
assess future environmental impacts should be
clearly referenced and documented. These sources
should include, as appropriate but not limited to,
local, tribal, regional, State, and federal agencies
as well as public and private organizations and in-
stitutions with responsibility or interest in the
types of conditions listed in §6.509 and in subpart
C of this part.
(5) Analysis of alternatives. This discussion
shall include a comparative analysis of feasible al-
ternatives, including the no action alternative,
throughout the study area. The alternatives shall be
screened with respect to capital and operating
costs; direct, indirect, and cumulative environ-
mental effects; physical, legal, or institutional con-
straints; and compliance with regulatory require-
ments. Special attention should given to: the envi-
ronmental consequences of long-term, irreversible,
and induced impacts; and for projects initiated
after September 30, 1978, that grant applicants
have satisfactorily demonstrated analysis of poten-
tial recreation and open-space opportunities in the
planning of the proposed treatment works. The
reasons for rejecting any alternatives shall be pre-
sented in addition to any significant environmental
benefits precluded by rejection of an alternative.
The analysis should consider when relevant to the
project:
(i) Flow and waste reduction measures, includ-
ing infiltration/inflow reduction and pretreatment
requirements;
(ii) Appropriate water conservation measures;
(iii) Alternative locations, capacities, and con-
struction phasing of facilities;
(iv) Alternative waste management techniques,
including pretreatment, treatment and discharge,
wasterwater reuse, land application, and individual
systems;
(v) Alternative methods for management of
sludge, other residual materials, including utiliza-
tion options such as land application, composting,
and conversion of sludge for marketing as a soil
conditioner or fertilizer;
(vi) Improving effluent quality through more ef-
ficient operation and maintenance;
(vii) Appropriate energy reduction measures;
and
(viii) Multiple use including recreation, other
open space, and environmental education.
(6) Evaluating environmental consequences of
proposed action. A full range of relevant impacts
of the proposed action shall be discussed, includ-
ing measures to mitigate adverse impacts, any irre-
versible or irretrievable commitments of resources
to the project and the relationship between local
short-term uses of the environment and the main-
tenance and enhancement of long-term productiv-
ity. Any specific requirements, including grant
conditions and areawide waste treatment manage-
ment plan requirements, should be identified and
referenced. In addition to these items, the respon-
sible official may require that other analyses and
data in accordance with subpart C which are need-
ed to satisfy environmental review requirements be
included with the facilities plan. Such require-
ments should be discussed whenever meetings are
held with Step 1 grantees or potential Step 3 or
Step 2 + 3 applicants.
(7) Minimizing adverse effects of the proposed
action, (i) Structural and nonstructural measures,
directly or indirectly related to the facilities plan,
to mitigate or eliminate adverse effects on the
human and natural environments, shall be identi-
fied during the environmental review. Among
other measures, structual provisions include
changes in facility design, size, and location; non-
structural provisions include staging facilities,
monitoring and enforcement of environmental reg-
ulations, and local commitments to develop and
enforce land use regulations.
(ii) The EPA shall not accept a facilities plan,
nor award grant assistance for its implementation,
if the applicant/grantee has not made, or agreed to
make, changes in the project, in accordance with
determinations made in a FNSI based on its sup-
porting environmental assessment or the ROD for
a EIS. The EPA shall condition a grant, or seek
other ways, to ensure that the grantee will comply
with such environmental review determinations.
(c) FNSI/EIS determination. The responsible of-
ficial shall apply the criteria under §6.509 to the
following:
(1) A complete facilities plan;
(2) The BID;
(3) The preliminary environmental assessment;
and
(4) Other documentation, deemed necessary by
the responsible official adequate to make an EIS
determination by EPA. Where EPA determines
that an EIS is to be prepared, there is no need to
prepare a formal environmental assessment. If
EPA or the State identifies deficiencies in the EID,
preliminary environmental assessment, or other
supporting documentation, necessary corrections
shall be made to this documentation before the
conditions of the Step 1 grant are considered satis-
fied or before the Step 3 or Step 2+3 application
is considered complete. The responsible official's
determination to issue a FNSI or to prepare an EIS
shall constitute final Agency action, and shall not
be subject to administrative review under 40 CFR
part 30, subpart L.
[50 FR 26317, June 25, 1985, as amended at 51 FR
32612, Sept. 12, 1986]
17
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§6.507
§6.507 Partitioning the environmental
review process.
(a) Purpose. Under certain circumstances the
building of a component/portion of a wastewater
treatment system may be justified in advance of
completing all NEPA requirements for the remain-
der of the system(s). When there are overriding
considerations of cost or impaired program effec-
tiveness, the responsible official may award a con-
struction grant, or approve procurement by other
than EPA funds, for a discrete component of a
complete wastewater treatment system(s). The
process of partitioning the environmental review
for the discrete component shall comply with the
criteria and procedures described in paragraph (b)
of this section. In addition, all reasonable alter-
natives for the overall wastewater treatment works
system(s) of which the component is a part shall
have been previously identified, and each part of
the environmental review for the remainder of the
overall facilities system(s) in the planning area in
accordance with §6.502(b)(3) shall comply with
all requirements under §6.506.
(b) Criteria for partitioning. (1) Projects may be
partitioned under the following circumstances:
(i) To overcome impaired program effective-
ness, the project component, in addition to meet-
ing the criteria listed in paragraph (b)(2) of this
section, must immediately remedy a severe public
health, water quality or other environmental prob-
lem; or
(ii) To significantly reduce direct costs on EPA
projects, or other related public works projects, the
project component (such as major pieces of equip-
ment, portions of conveyances or small structures)
in addition to meeting the criteria listed in para-
graph (b)(2) of this section, must achieve a cost
savings to the federal government and/or to the
grantee's or potential grantee's overall costs in-
curred in procuring the wastewater treatment
component(s) and/or the installation of other relat-
ed public works projects funded in coordination
with other federal, State, tribal or local agencies.
(2) The project component also must:
(i) Not foreclose any reasonable alternatives
identified for the overall wastewater treatment
works system(s);
(ii) Not cause significant adverse direct or indi-
rect environmental impacts including those which
cannot be acceptably mitigated without completing
the entire wastewater treatment system of which
the component is a part; and
(iii) Not be highly controversial.
(c) Requests for partitioning. The applicant's or
State's request for partitioning must contain the
following:
(1) A description of the discrete component pro-
posed for construction before completing the envi-
ronmental review of the entire facilities plan;
(2) How the component meets the above cri-
teria;
(3) The environmental information required by
§6.506 of this subpart for the component; and
(4) Any preliminary information that may be
important to EPA in an EIS determination for the
entire facilities plan (§6.509).
(d) Approval of requests for partitioning. The
responsible official shall:
(1) Review the request for partitioning against
all requirements of this subpart;
(2) If approvable, prepare and issue a FNSI in
accordance with §6.508;
(3) Include a grant condition prohibiting the
building of additional or different components of
the entire facilities system(s) in the planning area
as described in §6.502(b)(3)(i).
[50 FR 26317, June 25, 1985, as amended at 51 FR
32612, Sept. 12, 1986]
§6.508 Finding of No Significant Im-
pact (FNSI) determination.
(a) Criteria for producing and distributing
FNSIs. If, after completion of the environmental
review, EPA determines that an EIS will not be
required, the responsible official shall issue a
FNSI in accordance with §§6.105(f) and 6.400(d).
The FNSI will be based on EPA's independent re-
view of the preliminary environmental assessment
and any other environmental information deemed
necessary by the responsible official consistent
with the requirements of §6.506(c). Following the
Agency's independent review, the environmental
assessment will be finalized and either be incor-
porated into, or attached to, the FNSI. The FNSI
shall list all mitigation measures as defined in
§1508.20 of this title, and specifically identify
those mitigation measures necessary to make the
recommended alternative environmentally accept-
able.
(b) Proceeding with grant awards. (1) Once an
environmental assessment has been prepared and
the issued FNSI becomes effective for the treat-
ment works within the study area, grant awards
may proceed without preparation of additional
FNSIs, unless the responsible official later deter-
mines that the project or environmental conditions
have changed significantly from that which under-
went environmental review.
(2) For all environmental assessment/FNSI de-
terminations:
(i) That are five or more years old on projects
awaiting Step 2+3 or Step 3 grant funding, the re-
sponsible official shall re-evaluate the project, en-
vironmental conditions and public views and, prior
to grant award, either:
(A) Reaffirm—issue a public notice reaffirming
EPA's decision to proceed with the project with-
out revising the environmental assessment;
18
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§6.510
(B) Supplement—update information and pre-
pare, issue and distribute a revised EA/FNSI in ac-
cordance with §§6.105(f) and 6.400(d); or
(C) Reassess—withdraw the FNSI and publish a
notice of intent to produce an EIS followed by the
preparation, issuance and distribution of the EIS/
ROD.
(ii) That are made on projects that have been
awarded a Step 2+3 grant, the responsible official
shall, at the time of plans and specifications re-
view under §35.2202(b) of this title, assess wheth-
er the environmental conditions or the project's
anticipated impact on the environment have
changed and, prior to plans and specifications ap-
proval, advise the Regional Administrator if addi-
tional environmental review is necessary.
[51 FR 32612, Sept. 12, 1986]
§6.509 Criteria for initiating Environ-
mental Impact Statements (EIS).
(a) Conditions requiring EISs. (1) The respon-
sible official shall assure that an EIS will be pre-
pared and issued when it is determined that the
treatment works or collector system will cause any
of the conditions under § 6.108 to exist, or when
(2) The treated effluent is being discharged into
a body of water where the present classification is
too lenient or is being challenged as too low to
protect present or recent uses, and the effluent will
not be of sufficient quality or quantity to meet the
requirements of these uses.
(b) Other conditions. The responsible official
shall also consider preparing an EIS if: The
project is highly controversial; the project in con-
junction with related Federal, State, local or tribal
resource projects produces significant cumulative
impacts; or if it is determined that the treatment
works may violate federal, State, local or tribal
laws or requirements imposed for the protection of
the environment.
§6.510 Environmental Impact State-
ment (EIS) preparation.
(a) Steps in preparing EISs. In addition to the
requirements specified in subparts A, B, C, and D
of this part, the responsible official will conduct
the following activities:
(1) Notice of intent. If a determination is made
that an EIS will be required, the responsible offi-
cial shall prepare and distribute a notice of intent
as required in §6.105(e) of this part.
(2) Scoping. As soon as possible, after the pub-
lication of the notice of intent, the responsible of-
ficial will convene a meeting of affected federal,
State and local agencies, or affected Indian tribes,
the grantee and other interested parties to deter-
mine the scope of the EIS. A notice of this
scoping meeting must be made in accordance with
§6.400(a) and 40 CFR 1506.6(b). As part of the
scoping meeting EPA, in cooperation with any
delegated State, will as a minimum:
(i) Determine the significance of issues for and
the scope of those significant issues to be analyzed
in depth, in the EIS;
(ii) Identify the preliminary range of alternatives
to be considered;
(iii) Identify potential cooperating agencies and
determine the information or analyses that may be
needed from cooperating agencies or other parties;
(iv) Discuss the method for EIS preparation and
the public participation strategy;
(v) Identify consultation requirements of other
environmental laws, in accordance with subpart C;
and
(vi) Determine the relationship between the EIS
and the completion of the facilities plan and any
necessary coordination arrangements between the
preparers of both documents.
(3) Identifying and evaluating alternatives. Im-
mediately following the scoping process, the re-
sponsible official shall commence the identifica-
tion and evaluation of all potentially viable alter-
natives to adequately address the range of issues
identified in the scoping process. Additional issues
may be addressed, or others eliminated, during this
process and the reasons documented as part of the
EIS.
(b) Methods for preparing EISs. After EPA de-
termines the need for an EIS, it shall select one
of the following methods for its preparation:
(1) Directly by EPA's own staff;
(2) By EPA contracting directly with a qualified
consulting firm;
(3) By utilizing a third party method, whereby
the responsible official enters into "third party
agreements" for the applicant to engage and pay
for the services of a third party contractor to pre-
pare the EIS. Such agreement shall not be initiated
unless both the applicant and the responsible offi-
cial agree to its creation. A third party agreement
will be established prior to the applicant's EID
and eliminate the need for that document. In pro-
ceeding under the third party agreement, the re-
sponsible official shall carry out the following
practices:
(i) In consultation with the applicant, choose the
third party contractor and manage that contract;
(ii) Select the consultant based on ability and an
absence of conflict of interest. Third party contrac-
tors will be required to execute a disclosure state-
ment prepared by the responsible official signify-
ing they have no financial or other conflicting in-
terest in the outcome of the project; and
(iii) Specify the information to be developed
and supervise the gathering, analysis and presen-
tation of the information. The responsible official
shall have sole authority for approval and modi-
19
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§6.511
fication of the statements, analyses, and conclu-
sions included in the third party EIS; or
(4) By utilizing a joint EPA/State process on
projects within States which have requirements
and procedures comparable to NEPA, whereby the
EPA and the State agree to prepare a single EIS
document to fulfill both federal and State require-
ments. Both EPA and the State shall sign a
Memorandum of Agreement which includes the
responsibilities and procedures to be used by both
parties for the preparation of the EIS as provided
for in 40 CFR 1506.2(c).
§6.511 Record of Decision (ROD) for
EISs and identification of mitiga-
tion measures.
(a) Record of Decision. After a final EIS has
been issued, the responsible official shall prepare
and issue a ROD in accordance with 40 CFR
1505.2 prior to, or in conjunction with, the ap-
proval of the facilities plan. The ROD shall in-
clude identification of mitigation measures derived
from the EIS process including grant conditions
which are necessary to minimize the adverse im-
pacts of the selected alternative.
(b) Specific mitigation measures. Prior to the
approval of a facilities plan, the responsible offi-
cial must ensure that effective mitigation measures
identified in the ROD will be implemented by the
grantee. This should be done by revising the facili-
ties plan, initiating other steps to mitigate adverse
effects, or including conditions in grants requiring
actions to minimize effects. Care should be exer-
cised if a condition is to be imposed in a grant
document to assure that the applicant possesses the
authority to fulfill the conditions.
(c) Proceeding with grant awards. (1) Once the
ROD has been prepared on the selected, or pre-
ferred, alternative(s) for the treatment works de-
scribed within the EIS, grant awards may proceed
without the preparation of supplemental EISs un-
less the responsible official later determines that
the project or the environmental conditions de-
scribed within the current EIS have changed sig-
nificantly from the previous environmental review
in accordance with § 1502.9(c) of this title.
(2) For all EIS/ROD determinations:
(i) That are five or more years old on projects
awaiting Step 2+3 or Step 3 grant funding, the re-
sponsible official shall re-evaluate the project, en-
vironmental conditions and public views and, prior
to grant award, either:
(A) Reaffirm—issue a public notice reaffirming
EPA's decision to proceed with the project, and
documenting that no additional significant impacts
were identified during the re-evaluation which
would require supplementing the EIS; or
(B) Supplement—conduct additional studies and
prepare, issue and distribute a supplemental EIS in
accordance with §6.404 and document the origi-
nal, or any revised, decision in an addendum to
the ROD.
(ii) That are made on projects that have been
awarded a Step 2+3 grant, the responsible official
shall, at the time of plans and specifications re-
view under §35.2202(b) of this title, assess wheth-
er the environmental conditions or the project's
anticipated impact on the environment have
changed, and prior to plans and specifications ap-
proval, advise the Regional Administrator if addi-
tional environmental review is necessary.
[50 FR 26317, June 25, 1985, as amended at 51 FR
32613, Sept. 12, 1986]
§6.512 Monitoring for compliance.
(a) General. The responsible official shall en-
sure adequate monitoring of mitigation measures
and other grant conditions identified in the FNSI,
or ROD.
(b) Enforcement. If the grantee fails to comply
with grant conditions, the responsible official may
consider applying any of the sanctions specified in
40 CFR 30.900.
§6.513 Public participation.
(a) General. Consistent with public participation
regulations in part 25 of this title, and subpart D
of this part, it is EPA policy that certain public
participation steps be achieved before the State
and EPA complete the environmental review proc-
ess. As a minimum, all potential applicants that do
not qualify for a categorical exclusion shall con-
duct the following steps in accordance with proce-
dures specified in part 25 of this title:
(1) One public meeting when alternatives have
been developed, but before an alternative has been
selected, to discuss all alternatives under consider-
ation and the reasons for rejection of others; and
(2) One public hearing prior to formal adoption
of a facilities plan to discuss the proposed facili-
ties plan and any needed mitigation measures.
(b) Coordination. Public participation activities
undertaken in connection with the environmental
review process should be coordinated with any
other applicable public participation program
wherever possible.
(c) Scope. The requirements of 40 CFR 6.400
shall be fulfilled, and consistent with 40 CFR
1506.6, the responsible official may institute such
additional NEPA-related public participation pro-
cedures as are deemed necessary during the envi-
ronmental review process.
[50 FR 26317, June 25, 1985, as amended at 51 FR
32613, Sept. 12, 1986]
20
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§6.603
§6.514 Delegation to States.
(a) General. Authority delegated to the State
under section 205(g) of the Clean Water Act to re-
view a facilities plan may include all EPA activi-
ties under this part except for the following:
(1) Determinations of whether or not a project
qualifies for a categorical exclusion;
(2) Determinations to partition the environ-
mental review process;
(3) Finalizing the scope of an EID when re-
quired to adequately conclude an independent re-
view of a preliminary environmental assessment;
(4) Finalizing the scope of an environmental as-
sessment, and finalization, approval and issuance
of a final environmental assessment;
(5) Determination to issue, and issuance of, a
FNSI based on a completed (§6.508) or parti-
tioned (§6.507(d)(2)) environmental review;
(6) Determination to issue, and issuance of, a
notice of intent for preparing an EIS;
(7) Preparation of EISs under §6.510(b) (1) and
(2), final decisions required for preparing an EIS
under §6.510(b)(3), finalizing the agreement to
prepare an EIS under §6.510(b)(4), finalizing the
scope of an EIS, and issuance of draft, final and
supplemental EISs;
(8) Preparation and issuance of the ROD based
on an EIS;
(9) Final decisions under other applicable laws
described in subpart C of this part;
(10) Determination following re-evaluations of
projects awaiting grant funding in the case of Step
3 projects whose existing evaluations and/or deci-
sion documents are five or more years old, or de-
terminations following re-evaluations on projects
submitted for plans and specifications review and
approval in the case of awarded Step 2+3 projects
where the EPA Regional Administrator has been
advised that additional environmental review is
necessary, in accordance with §6.505(d)(2),
§6.508(b)(2) or §6.511(c)(2); and
(11) Maintenance of official EPA monthly sta-
tus reports as required under § 6.402(b).
(b) Elimination of duplication. The responsible
official shall assure that maximum efforts are un-
dertaken to minimize duplication within the limits
described under paragraph (a) of this section. In
carrying out requirements under this subpart, max-
imum consideration shall be given to eliminating
duplication in accordance with § 1506.2 of this
title. Where there are State or local procedures
comparable to NEPA, EPA should enter into
memoranda of understanding with these States
concerning workload distribution and responsibil-
ities not specifically reserved to EPA in paragraph
(a) of this section for implementing the environ-
mental review and facilities planning process.
[50 FR 26317, June 25, 1985, as amended at 51 FR
32613, Sept. 12, 1986]
Subpart F—Environmental Review
Procedures for the New
Source NPDES Program
§6.600 Purpose.
(a) General. This subpart provides procedures
for carrying out the environmental review process
for the issuance of new source National Pollutant
Discharge Elimination System (NPDES) discharge
permits authorized under section 306, section 402,
and section 511(c)(l) of the Clean Water Act.
(b) Permit regulations. All references in this
subpart to the permit regulations shall mean parts
122 and 124 of title 40 of the CFR relating to the
NPDES program.
[44 FR 64177, Nov. 6, 1979, as amended at 47 FR 9831,
Mar. 8, 1982]
§6.601 Definitions.
(a) The term administrative action for the sake
of this subpart means the issuance by EPA of an
NPDES permit to discharge as a new source, pur-
suant to 40 CFR 124.15.
(b) The term applicant for the sake of this sub-
part means any person who applies to EPA for the
issuance of an NPDES permit to discharge as a
new source.
[44 FR 64177, Nov. 6, 1979, as amended at 47 FR 9831,
Mar. 8, 1982]
§6.602 Applicability.
(a) General. The procedures set forth under sub-
parts A, B, C and D, and this subpart shall apply
to the issuance of new source NPDES permits, ex-
cept for the issuance of a new source NPDES per-
mit from any State which has an approved NPDES
program in accordance with section 402(b) of the
Clean Water Act.
(b) New Source Determination. An NPDES per-
mittee must be determined a new source before
these procedures apply. New source determinations
will be undertaken pursuant to the provisions of
the permit regulations under § 122.29(a) and (b) of
this chapter and § 122.53(h).
[44 FR 64177, Nov. 6, 1979, as amended at 47 FR 9831,
Mar. 8, 1982; 51 FR 32613, Sept. 12, 1986]
§6.603 Limitations on actions during
environmental review process.
The processing and review of an applicant's
NPDES permit application shall proceed concur-
rently with the procedures within this subpart. Ac-
tions undertaken by the applicant or EPA shall be
performed consistent with the requirements of
§ 122.29(c) of this chapter.
[47 FR 9831, Mar. 8, 1982, as amended at 51 FR 32613,
Sept. 12, 1986]
21
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§6.604
§6.604 Environmental review process.
(a) New source. If EPA's initial determination
under §6.602(b) is that the facility is a new
source, the responsible official shall evaluate any
environmental information to determine if any sig-
nificant impacts are anticipated and an EIS is nec-
essary. If the permit applicant requests, the respon-
sible official shall establish time limits for the
completion of the environmental review process
consistent with 40 CFR 1501.8.
(b) Information needs. Information necessary for
a proper environmental review shall be provided
by the permit applicant in an environmental infor-
mation document. The responsible official shall
consult with the applicant to determine the scope
of an environmental information document. In
doing this the responsible official shall consider
the size of the new source and the extent to which
the applicant is capable of providing the required
information. The responsible official shall not re-
quire the applicant to gather data or perform anal-
yses which unnecessarily duplicate either existing
data or the results of existing analyses available to
EPA. The responsible official shall keep requests
for data to the minimum consistent with his re-
sponsibilities under NEPA.
(c) Environmental assessment. The responsible
official shall prepare a written environmental as-
sessment based on an environmental review of ei-
ther the environmental information document and/
or any other available environmental information.
(d) EIS determination. (1) When the environ-
mental review indicates that a significant environ-
mental impact may occur and that the significant
adverse impacts cannot be eliminated by making
changes in the proposed new source project, a no-
tice of intent shall be issued, and a draft EIS pre-
pared and distributed. When the environmental re-
view indicates no significant impacts are antici-
pated or when the proposed project is changed to
eliminate the significant adverse impacts, a FNSI
shall be issued which lists any mitigation measures
necessary to make the recommended alternative
environmentally acceptable.
(2) The FNSI together with the environmental
assessment that supports the finding shall be dis-
tributed in accordance with §6.400(d) of this regu-
lation.
(e) Lead agency. (1) If the environmental re-
view reveals that the preparation of an EIS is re-
quired, the responsible official shall determine if
other Federal agencies are involved with the
project. The responsible official shall contact all
other involved agencies and together the agencies
shall decide the lead agency based on the criteria
set forth in 40 CFR 1501.5.
(2) If, after the meeting of involved agencies,
EPA has been determined to be the lead agency,
the responsible official may request that other in-
volved agencies be cooperating agencies. Cooper-
ating agencies shall be chosen and shall be in-
volved in the EIS preparation process in the man-
ner prescribed in the 40 CFR 1501.6(a). If EPA
has been determined to be a cooperating agency,
the responsible official shall be involved in assist-
ing in the preparation of the EIS in the manner
prescribed in 40 CFR 1501.6(b).
(f) Notice of intent. (1) If EPA is the lead agen-
cy for the preparation of an EIS, the responsible
official shall arrange through OER for the publica-
tion of the notice of intent in the FEDERAL REG-
ISTER, distribute the notice of intent and arrange
and conduct a scoping meeting as outlined in 40
CFR 1501.7.
(2) If the responsible official and the permit ap-
plicant agree to a third party method of EIS prepa-
ration, pursuant to § 6.604(g)(3) of this part, the
responsible official shall insure that a notice of in-
tent is published and that a scoping meeting is
held before the third party contractor begins work
which may influence the scope of the EIS.
(g) EIS method. EPA shall prepare EISs by one
of the following means:
(1) Directly by its own staff;
(2) By contracting directly with a qualified con-
sulting firm; or
(3) By utilizing a third party method, whereby
the responsible official enters into a third party
agreement for the applicant to engage and pay for
the services of a third party contractor to prepare
the EIS. Such an agreement shall not be initiated
unless both the applicant and the responsible offi-
cial agree to its creation. A third party agreement
will be established prior to the applicant's environ-
mental information document and eliminate the
need for that document. In proceeding under the
third party agreement, the responsible official shall
carry out the following practices:
(i) In consultation with the applicant, choose the
third party contractor and manage that contract.
(ii) Select the consultant based on his ability
and an absence of conflict of interest. Third party
contractors will be required to execute a disclosure
statement prepared by the responsible official sig-
nifying they have no financial or other conflicting
interest in the outcome of the project.
(iii) Specify the information to be developed
and supervise the gathering, analysis and presen-
tation of the information. The responsible official
shall have sole authority for approval and modi-
fication of the statements, analyses, and conclu-
sions included in the third party EIS.
(h) Documents for the administrative record.
Pursuant to 40 CFR 124.9(b)(6) and 124.18(b)(5)
any environmental assessment, FNSI EIS, or sup-
plement to an EIS shall be made a part of the ad-
ministrative record related to permit issuance.
22
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§6.700
[44 FR 64177, Nov. 6, 1979, as amended at 47 FR 9831,
Mar. 8, 1982]
§6.605 Criteria for preparing EISs.
(a) General guidelines. (1) When determining
the significance of a proposed new source's im-
pact, the responsible official shall consider both its
short term and long term effects as well as its di-
rect and indirect effects and beneficial and adverse
environmental impacts as defined in 40 CFR
1508.8.
(2) If EPA is proposing to issue a number of
new source NPDES permits during a limited time
span and in the same general geographic area, the
responsible official shall examine the possibility of
tiering EISs. If the permits are minor and environ-
mentally insignificant when considered separately,
the responsible official may determine that the cu-
mulative impact of the issuance of all these per-
mits may have a significant environmental effect
and require an EIS for the area. Each separate de-
cision to issue an NPDES permit shall then be
based on the information in this areawide EIS. Site
specific EISs may be required in certain cir-
cumstances in addition to the areawide EIS.
(b) Specific criteria. An EIS will be prepared
when:
(1) The new source will induce or accelerate
significant changes in industrial, commercial, agri-
cultural, or residential land use concentrations or
distributions which have the potential for signifi-
cant environmental effects. Factors that should be
considered in determining if these changes are en-
vironmentally significant include but are not lim-
ited to: The nature and extent of the vacant land
subject to increased development pressure as a re-
sult of the new source; the increases in population
or population density which may be induced and
the ramifications of such changes; the nature of
land use regulations in the affected area and their
potential effects on development and the environ-
ment; and the changes in the availability or de-
mand for energy and the resulting environmental
consequences.
(2) The new source will directly, or through in-
duced development, have significant adverse effect
upon local ambient air quality, local ambient noise
levels, floodplains, surface or groundwater quality
or quantity, fish, wildlife, and their natural habi-
tats.
(3) Any major part of the new source will have
significant adverse effect on the habitat of threat-
ened or endangered species on the Department of
the Interior's or a State's lists of threatened and
endangered species.
(4) The environmental impact of the issuance of
a new source NPDES permit will have significant
direct and adverse effect on a property listed in or
eligible for listing in the National Register of His-
toric Places.
(5) Any major part of the source will have sig-
nificant adverse effects on parklands, wetlands,
wild and scenic rivers, reservoirs or other impor-
tant bodies of water, navigation projects, or agri-
cultural lands.
§6.606 Record of decision.
(a) General. At the time of permit award, the
responsible official shall prepare a record of deci-
sion in those cases where a final EIS was issued
in accordance with 40 CFR 1505.2 and pursuant
to the provisions of the permit regulations under
40 CFR 124.15 and 124.18(b)(5). The record of
decision shall list any mitigation measures nec-
essary to make the recommended alternative envi-
ronmentally acceptable.
(b) Mitigation measures. The mitigation meas-
ures derived from the EIS process shall be incor-
porated as conditions of the permit; ancillary
agreements shall not be used to require mitigation.
[44 FR 64177, Nov. 6, 1979, as amended at 47 FR 9831,
Mar. 8, 1982]
§6.607 Monitoring.
In accordance with 40 CFR 1505.3 and pursuant
to 40 CFR 122.66(c) and 122.10 the responsible
official shall ensure that there is adequate monitor-
ing of compliance with all NEPA related require-
ments contained in the permit.
[47 FR 9831, Mar. 8, 1982]
Subpart G—Environmental Review
Procedures for Office of Re-
search and Development
Projects
SOURCE: 56 FR 20543, May 6, 1991, unless otherwise
noted.
§6.700 Purpose.
(a) This subpart amplifies the requirements de-
scribed in subparts A through D by providing spe-
cific environmental review procedures for activi-
ties undertaken or funded by the Office of Re-
search and Development (ORD).
(b) The ORD Program provides scientific sup-
port for setting environmental standards as well as
the technology needed to prevent, monitor and
control pollution. Intramural research is conducted
at EPA laboratories and field stations throughout
the United States. Extramural research is imple-
mented through grants, cooperative agreements,
and contracts. The majority of ORD's research is
conducted within the confines of laboratories. Out-
door research includes monitoring, sampling, and
environmental stress and ecological effects studies.
23
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§6.701
§6.701 Definition.
The term appropriate program official means
the official at each decision level within ORD to
whom the Assistant Administrator has delegated
responsibility for carrying out the environmental
review process.
§6.702 Applicability.
The requirements of this subpart apply to ad-
ministrative actions undertaken to approve intra-
mural and extramural projects under the purview
of ORD.
§6.703 General.
(a) Environmental information. (1) For intra-
mural research projects, information necessary to
perform the environmental review shall be ob-
tained by the appropriate program official.
(2) For extramural research projects, environ-
mental information documents shall be submitted
to EPA by applicants to facilitate the Agency's en-
vironmental review process. Guidance on environ-
mental information documents shall be included in
all assistance application kits and in contract pro-
posal instructions. If there is a question concerning
the preparation of an environmental information
document, the applicant should consult with the
project officer or contract officer for guidance.
(b) Environmental review. The diagram in figure
1 represents the various stages of the environ-
mental review process to be undertaken for ORD
projects.
(1) For intramural research projects, an environ-
mental review will be performed for each labora-
tory's projects at the start of the planning year.
The review will be conducted before projects are
incorporated into the ORD program planning sys-
tem. Projects added at a later date and, therefore,
not identified at the start of the planning year, or
any redirection of a project that could have signifi-
cant environmental effects, also will be subjected
to an environmental review. This review will be
performed in accordance with the process set forth
in this subpart and depicted in figure 1.
(2) For extramural research projects, the envi-
ronmental review shall be conducted before an ini-
tial or continuing award is made. The appropriate
program official will perform the environmental
review in accordance with the process set forth in
this subpart and depicted in figure 1. EPA form
5300-23 will be used to document categorical ex-
clusion determinations or, with appropriate sup-
porting analysis, as the environmental assessment
(EA). The completed form 5300-23 and any find-
ing of no significant impact (FNSI) or environ-
mental impact statement (EIS) will be submitted
with the proposal package to the appropriate EPA
assistance or contract office.
(c) Agency coordination. In order to avoid du-
plication of effort and ensure consistency through-
out the Agency, environmental reviews of ORD
projects will be coordinated, as appropriate and
feasible, with reviews performed by other program
offices. Technical support documents prepared for
reviews in other EPA programs may be adopted
for use in ORD's environmental reviews and sup-
plemented, as appropriate.
§6.704 Categorical exclusions.
(a) At the beginning of the environmental re-
view process (see Figure 1), the appropriate pro-
gram official shall determine whether an ORD
project can be categorically excluded from the
substantive requirements of a NEPA review. This
determination shall be based on general criteria in
§6.107(d) and specialized categories of ORD ac-
tions eligible for exclusion in § 6.704(b). If the ap-
propriate program official determines that an ORD
project is consistent with the general criteria and
any of the specialized categories of eligible activi-
ties, and does not satisfy the criteria in §6.107(e)
for not granting a categorical exclusion, then this
finding shall be documented and no further action
shall be required. A categorical exclusion shall be
revoked by the appropriate program official if it is
determined that the project meets the criteria for
revocation in §6.107(c). Projects that fail to qual-
ify for categorical exclusion or for which categor-
ical exclusion has been revoked must undergo full
environmental review in accordance with §6.705
and §6.706.
(b) The following specialized categories of
ORD actions are eligible for categorical exclusion
from a detailed NEPA review:
(1) Library or literature searches and studies;
(2) Computer studies and activities;
(3) Monitoring and sample collection wherein
no significant alteration of existing ambient condi-
tions occurs;
(4) Projects conducted completely within a con-
tained facility, such as a laboratory or other en-
closed building, where methods are employed for
appropriate disposal of laboratory wastes and safe-
guards exist against hazardous, toxic, and radio-
active materials entering the environment. Labora-
tory directors or other appropriate officials must
certify and provide documentation that the labora-
tory follows good laboratory practices and adheres
to applicable federal statutes, regulations and
guidelines.
§6.705 Environmental assessment and
finding of no significant impact.
(a) When a project does not meet any of the cri-
teria for categorical exclusion, the appropriate pro-
gram official shall undertake an environmental as-
sessment in accordance with 40 CFR 1508.9 in
24
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§6.706
order to determine whether an EIS is required or
if a FNSI can be made. ORD projects which nor-
mally result in the preparation of an EA include
the following:
(1) Initial field demonstration of a new tech-
nology;
(2) Field trials of a new product or new uses of
an existing technology;
(3) Alteration of a local habitat by physical or
chemical means.
(b) If the environmental assessment reveals that
the research is not anticipated to have a significant
impact on the environment, the appropriate pro-
gram official shall prepare a FNSI in accordance
with §6.105(f). Pursuant to §6.400(d), no admin-
istrative action will be taken on a project until the
prescribed 30-day comment period for a FNSI has
elapsed and the Agency has fully considered all
comments.
(c) On actions involving potentially significant
impacts on the environment, a FNSI may be pre-
pared if changes have been made in the proposed
action to eliminate any significant impacts. These
changes must be documented in the proposal and
in the FNSI.
(d) If the environmental assessment reveals that
the research may have a significant impact on the
environment, an EIS must be prepared. The appro-
priate program official may make a determination
that an EIS is necessary without preparing a for-
mal environmental assessment. This determination
may be made by applying the criteria for prepara-
tion of an EIS in § 6.706.
§6.706 Environmental impact state-
ment.
(a) Criteria for preparation. In performing the
environmental review, the appropriate program of-
ficial shall assure that an EIS is prepared when
any of the conditions under §6.108 (a) through (g)
exist or when:
(1) The proposed action may significantly affect
the environment through the release of radioactive,
hazardous or toxic substances;
(2) The proposed action, through the release of
an organism or organisms, may involve environ-
mental effects which are significant;
(3) The proposed action involves effects upon
the environment which are likely to be highly con-
troversial;
(4) The proposed action involves environmental
effects which may accumulate over time or com-
bine with effects of other actions to create impacts
which are significant;
(5) The proposed action involves uncertain envi-
ronmental effects or highly unique environmental
risks which may be significant.
(b) ORD actions which may require preparation
of an EIS. There are no ORD actions which nor-
mally require the preparation of an EIS. However,
each ORD project will be evaluated using the EIS
criteria as stated in § 6.706(a) to determine wheth-
er an EIS must be prepared.
(c) Notice of intent. (1) If the environmental re-
view reveals that a proposed action may have a
significant effect on the environment and this ef-
fect cannot be eliminated by redirection of the re-
search or other means, the appropriate program of-
ficial shall issue a notice of intent to prepare an
EIS pursuant to § 6.400(b).
(2) As soon as possible after release of the no-
tice of intent, the appropriate program official
shall ensure that a draft EIS is prepared in accord-
ance with subpart B and that the public is in-
volved in accordance with subpart D.
(3) Draft and final EISs shall be sent to the As-
sistant Administrator for ORD for approval.
(4) Pursuant to §6.401(b), a decision on wheth-
er to undertake or fund a project must be made in
conformance with the time frames indicated.
(d) Record of decision. Before the project is un-
dertaken or funded, the appropriate program offi-
cial shall prepare, in accordance with § 6.105 (g)
and (h), a record of decision in any case where a
final EIS has been issued.
25
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§6.706
lnsert/illustration(s) 0 908
26
-------
§ 6.902
Subpart H—Environmental Review
Procedures for Solid Waste
Demonstration Projects
§ 6.800 Purpose.
This subpart amplifies the procedures described
in subparts A through D by providing more spe-
cific environmental review procedures for dem-
onstration projects undertaken by the Office of
Solid Waste and Emergency Response.
[44 FR 64177, Nov. 6, 1979, as amended at 51 FR
32613, Sept. 12, 1986]
§6.801 Applicability.
The requirements of this subpart apply to solid
waste demonstration projects for resource recovery
systems and improved solid waste disposal facili-
ties undertaken pursuant to section 8006 of the
Resource Conservation and Recovery Act of 1976.
§ 6.802 Criteria for preparing EISs.
The responsible official shall assure that an EIS
will be prepared when it is determined that any of
the conditions in §6.108 exist.
[44 FR 64177, Nov. 6, 1979, as amended at 50 FR
26323, June 25, 1985]
§ 6.803 Environmental review process.
(a) Environmental information. (1) Environ-
mental information documents shall be submitted
to EPA by grant applicants or contractors. If there
is a question concerning the need for a document,
the potential contractor or grantee should consult
with the appropriate project officer for the grant or
contract.
(2) The environmental information document
shall contain the same sections specified for EIS's
in subpart B. Guidance alerting potential grantees
and contractors of the environmental information
documents shall be included in all grant applica-
tion kits, attached to letters concerning the submis-
sion of unsolicited proposals, and included with all
requests for proposal.
(b) Environmental review. An environmental re-
view will be conducted before a grant or contract
award is made. This review will include the prepa-
ration of an environmental assessment by the re-
sponsible official; the appropriate Regional Ad-
ministrator's input will include his recommenda-
tions on the need for an EIS.
(c) Notice of intent and EIS. Based on the envi-
ronmental review if the criteria in §6.802 of this
part apply, the responsible official will assure that
a notice of intent and a draft EIS are prepared.
The responsible official may request the appro-
priate Regional Administrator to assist him in the
preparation and distribution of the environmental
documents.
(d) Finding of no significant impact. If the envi-
ronmental review indicated no significant environ-
mental impacts, the responsible official will assure
that a FNSI is prepared which lists any mitigation
measures necessary to make the recommended al-
ternative environmentally acceptable.
(e) Timing of action. Pursuant to §6.401(b), in
no case shall a contract or grant be awarded until
the prescribed 30-day review period for a final
EIS has elapsed. Similarly, no action shall be
taken until the 30-day comment period for a FNSI
is completed.
§ 6.804 Record of decision.
The responsible official shall prepare a record
of decision in any case where final EIS has been
issued in accordance with 40 CFR 1505.2. It shall
be prepared at the time of contract or grant award.
The record of decision shall list any mitigation
measures necessary to make the recommended al-
ternative environmentally acceptable.
Subpart I—Environmental Review
Procedures for EPA Facility
Support Activities
§ 6.900 Purpose.
This subpart amplifies the general requirements
described in subparts A through D by providing
environmental procedures for the preparation of
EISs on construction and renovation of special
purpose facilities.
§6.901 Definitions.
(a) The term special purpose facility means a
building or space, including land incidental to its
use, which is wholly or predominantly utilized for
the special purpose of an agency and not generally
suitable for other uses, as determined by the Gen-
eral Services Administration.
(b) The term program of requirements means a
comprehensive document (booklet) describing pro-
gram activities to be accomplished in the new spe-
cial purpose facility or improvement. It includes
architectural, mechanical, structural, and space re-
quirements.
(c) The term scope of work means a document
similar in content to the program of requirements
but substantially abbreviated. It is usually prepared
for small-scale projects.
§ 6.902 Applicability.
(a) Actions covered. These procedures apply to
all new special purpose facility construction, ac-
tivities related to this construction (e.g., site acqui-
sition and clearing), and any improvements or
modifications to facilities having potential environ-
mental effects external to the facility, including
27
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§ 6.903
new construction and improvements undertaken
and funded by the Facilities Engineering and Real
Estate Branch, Facilities and Support Services Di-
vision, Office of the Assistant Administrator for
Administration and Resource Management; or by
a regional office .
(b) Actions excluded This subpart does not
apply to those activities of the Facilities Engineer-
ing and Real Estate Branch, Facilities and Support
Services Division, for which the branch does not
have full fiscal responsibility for the entire project.
This includes pilot plant construction, land acquisi-
tion, site clearing and access road construction
where the Facilities Engineering and Real Estate
Branch's activity is only supporting a project fi-
nanced by a program office. Responsibility for
considering the environmental impacts of such
projects rests with the office managing and fund-
ing the entire project. Other subparts of this regu-
lation apply depending on the nature of the
project.
[44 FR 64177, Nov. 6, 1979, as amended at 51 FR
32613, Sept. 12, 1986]
§ 6.903 Criteria for preparing EISs.
(a) Preliminary information. The responsible of-
ficial shall request an environmental information
document from a construction contractor or con-
sulting architect/engineer employed by EPA if he
is involved in the planning, construction or modi-
fication of special purpose facilities when his ac-
tivities have potential environmental effects exter-
nal to the facility. Such modifications include but
are not limited to facility additions, changes in
central heating systems or wastewater treatment
systems, and land clearing for access roads and
parking lots.
(b) EIS preparation criteria. The responsible of-
ficial shall conduct an environmental review of all
actions involving construction of special purpose
facilities and improvements to these facilities. The
responsible official shall assure that an EIS will be
prepared when it is determined that any of the
conditions in §6.108 of this part exist.
[44 FR 64177, Nov. 6, 1979, as amended at 50 FR
26323, June 25, 1985]
§ 6.904 Environmental review process.
(a) Environmental review. (1) An environmental
review shall be conducted when the program of
requirements or scope of work has been completed
for the construction, improvements, or modifica-
tion of special purpose facilities. For special pur-
pose facility construction, the Chief, Facilities En-
gineering and Real Estate Branch, shall request the
assistance of the appropriate program office and
Regional Administrator in the review. For modi-
fications and improvement, the appropriate respon-
sible official shall request assistance in making the
review from other cognizant EPA offices.
(2) Any environmental information documents
requested shall contain the same sections listed for
EISs in subpart B. Contractors and consultants
shall be notified in contractual documents when an
environmental information document must be pre-
pared.
(b) Notice of intent, EIS, and FNSI. The respon-
sible official shall decide at the completion of the
Environmental review whether there may be any
significant environmental impacts. If there could
be significant environmental impacts, a notice of
intent and an EIS shall be prepared according to
the procedures under subparts A, B, C and D. If
there are not any significant environmental im-
pacts, a FNSI shall be prepared according to the
procedures in subparts A and D. The FNSI shall
list any mitigation measures necessary to make the
recommended alternative environmentally accept-
able.
(c) Timing of action. Pursuant to §6.401(b), in
no case shall a contract be awarded or construc-
tion activities begun until the prescribed 30-day
wait period for a final EIS has elapsed. Similarly,
under § 6.400(d), no action shall be taken until the
30-day comment period for FNSIs is completed.
§ 6.905 Record of decision.
At the time of contract award, the responsible
official shall prepare a record of decision in those
cases where a final EIS has been issued in accord-
ance with 40 CFR 1505.2. The record of decision
shall list any mitigation measures necessary to
make the recommended alternative environ-
mentally acceptable.
Subpart J—Assessing the Environ-
mental Effects Abroad of EPA
Actions
AUTHORITY: Executive Order 12114, 42 U.S.C. 4321,
note.
SOURCE: 46 FR 3364, Jan. 14, 1981, unless otherwise
noted.
§6.1001 Purpose and policy.
(a) Purpose. On January 4, 1979, the President
signed Executive Order 12114 entitled "Environ-
mental Effects Abroad of Major Federal Actions."
The purpose of this Executive Order is to enable
responsible Federal officials in carrying out or ap-
proving major Federal actions which affect foreign
nations or the global commons to be informed of
pertinent environmental considerations and to con-
sider fully the environmental impacts of the ac-
tions undertaken. While based on independent au-
thority, this Order furthers the purpose of the Na-
28
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§6.1004
tional Environmental Policy Act (NEPA) (42
U.S.C. 4321 et seq.) and the Marine Protection
Research and Sanctuaries Act (MPRSA) (33
U.S.C. 1401 et seq.). It should be noted, however,
that in fulfilling its responsibilities under Execu-
tive Order 12114, EPA shall be guided by CEQ
regulations only to the extent that they are made
expressly applicable by this subpart. The proce-
dures set forth below reflect EPA's duties and re-
sponsibilities as required under the Executive
Order and satisfy the requirement for issuance of
procedures under section 2-1 of the Executive
Order.
(b) Policy. It shall be the policy of this Agency
to carry out the purpose and requirements of the
Executive Order to the fullest extent possible.
EPA, within the realm of its expertise, shall work
with the Department of State and the Council on
Environmental Quality to provide information to
other Federal agencies and foreign nations to
heighten awareness of and interest in the environ-
ment. EPA shall further cooperate to the extent
possible with Federal agencies to lend special ex-
pertise and assistance in the preparation of re-
quired environmental documents under the Execu-
tive Order. EPA shall perform environmental re-
views of activities significantly affecting the glob-
al commons and foreign nations as required under
Executive Order 12114 and as set forth under
these procedures.
§6.1002 Applicability.
(a) Administrative actions requiring environ-
mental review. The environmental review require-
ments apply to the activities of EPA as set forth
below:
(1) Major research or demonstration projects
which affect the global commons or a foreign na-
tion.
(2) Ocean dumping activities carried out under
section 102 of the MPRSA which affect the relat-
ed environment.
(3) Major permitting or licensing by EPA of fa-
cilities which affect the global commons or the en-
vironment of a foreign nation. This may include
such actions as the issuance by EPA of hazardous
waste treatment, storage, or disposal facility per-
mits pursuant to section 3005 of the Resource
Conservation and Recovery Act (42 U.S.C. 6925),
NPDES permits pursuant to section 402 of the
Clean Water Act (33 U.S.C. 1342), and prevention
of significant deterioration approvals pursuant to
Part C of the Clean Air Act (42 U.S.C. 7470 et
seq.).
(4) Wastewater Treatment Construction Grants
Program under section 201 of the Clean Water Act
when activities addressed in the facility plan
would have environmental effects abroad.
(5) Other EPA activities as determined by OER
and OIA(see §6.1007(c)).
§6.1003 Definitions.
As used in this subpart, environment means the
natural and physical environment and excludes so-
cial, economic and other environments; global
commons is that area (land, air, water) outside the
jurisdiction of any nation; and responsible official
is either the EPA Assistant Administrator or Re-
gional Administrator as appropriate for the particu-
lar EPA program. Also, an action significantly af-
fects the environment if it does significant harm to
the environment even though on balance the action
may be beneficial to the environment. To the ex-
tent applicable, the responsible official shall ad-
dress the considerations set forth in the CEQ Reg-
ulations under 40 CFR 1508.27 in determining sig-
nificant effect.
§6.1004 Environmental review and as-
sessment requirements.
(a) Research and demonstration projects. The
appropriate Assistant Administrator is responsible
for performing the necessary degree of environ-
mental review on research and demonstration
projects undertaken by EPA. If the research or
demonstration project affects the environment of
the global commons, the applicant shall prepare an
environmental analysis. This will assist the respon-
sible official in determining whether an EIS is
necessary. If it is determined that the action sig-
nificantly affects the environment of the global
commons, then an EIS shall be prepared. If the
undertaking significantly affects a foreign nation
EPA shall prepare a unilateral, bilateral or multi-
lateral environmental study. EPA shall afford the
affected foreign nation or international body or or-
ganization an opportunity to participate in this
study. This environmental study shall discuss the
need for the action, analyze the environmental im-
pact of the various alternatives considered and list
the agencies and other parties consulted.
(b) Ocean dumping activities. (1) The Assistant
Administrator for Water and Waste Management
shall ensure the preparation of appropriate envi-
ronmental documents relating to ocean dumping
activities in the global commons under section 102
of the MPRSA. For ocean dumping site designa-
tions prescribed pursuant to section 102(c) of the
MPRSA and 40 CFR part 228, EPA shall prepare
an environmental impact statement consistent with
the requirements of EPA's Procedures for the Vol-
untary Preparation of Environmental Impact State-
ments dated October 21, 1974 (see 39 FR 37419).
Also EPA shall prepare an environmental impact
statement for the establishment or revision of cri-
teria under section 102(a) of MPRSA.
29
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§6.1005
(2) For individual permits issued by EPA under
section 102(b) an environmental assessment shall
be made by EPA. Pursuant to 40 CFR part 221,
the permit applicant shall submit with the applica-
tion an environmental analysis which includes a
discussion of the need for the action, an outline of
alternatives, and an analysis of the environmental
impact of the proposed action and alternatives
consistent with the EPA criteria established under
section 102(a) of MPRSA. The information sub-
mitted under 40 CFR part 221 shall be sufficient
to satisfy the environmental assessment require-
ment.
(c) EPA permitting and licensing activities. The
appropriate Regional Administrator is responsible
for conducting concise environmental reviews with
regard to permits issued under section 3005 of the
Resource Conservation and Recovery Act (RCRA
permits), section 402 of the Clean Water Act
(NPDES permits), and section 165 of the Clean
Air Act (PSD permits), for such actions under-
taken by EPA which affect the global commons or
foreign nations. The information submitted by ap-
plicants for such permits or approvals under the
applicable consolidated permit regulations (40
CFR parts 122 and 124) and Prevention of Signifi-
cant Deterioration (PSD) regulations (40 CFR part
52) shall satisfy the environmental document re-
quirement under section 2^1(b) of Executive Order
12114. Compliance with applicable requirements
in part 124 of the consolidated permit regulations
(40 CFR part 124) shall be sufficient to satisfy the
requirements to conduct a concise environmental
review for permits subject to this paragraph.
(d) Wastewater treatment facility planning. 40
CFR 6.506 details the environmental review proc-
ess for the facilities planning process under the
wastewater treatment works construction grants
program. For the purpose of these regulations, the
facility plan shall also include a concise environ-
mental review of those activities that would have
environmental effects abroad. This shall apply
only to the Step 1 grants awarded after January
14, 1981, but on or before December 29, 1981,
and facilities plans developed after December 29,
1981. Where water quality impacts identified in a
facility plan are the subject or water quality agree-
ments with Canada or Mexico, nothing in these
regulations shall impose on the facility planning
process coordination and consultation requirements
in addition to those required by such agreements.
(e) Review by other Federal agencies and other
appropriate officials. The responsible officials
shall consult with other Federal agencies with rel-
evant expertise during the preparation of the envi-
ronmental document. As soon as feasible after
preparation of the environmental document, the re-
sponsible official shall make the document avail-
able to the Council on Environmental Quality, De-
partment of State, and other appropriate officials.
The responsible official with assistance from OIA
shall work with the Department of State to estab-
lish procedures for communicating with and mak-
ing documents available to foreign nations and
international organizations.
[46 FR 3364, Jan. 14, 1981, as amended at 50 FR 26323,
June 25, 1985]
§6.1005 Lead or cooperating agency.
(a) Lead Agency. Section 3-3 of Executive
Order 12114 requires the creation of a lead agency
whenever an action involves more than one federal
agency. In implementing section 3-3, EPA shall,
to the fullest extent possible, follow the guidance
for the selection of a lead agency contained in 40
CFR 1501.5 of the CEQ regulations.
(b) Cooperating Agency. Under section 2-4(d)
of the Executive Order, Federal agencies with spe-
cial expertise are encouraged to provide appro-
priate resources to the agency preparing environ-
mental documents in order to avoid duplication of
resources. In working with a lead agency, EPA
shall to the fullest extent possible serve as a co-
operating agency in accordance with 40 CFR
1501.6. When other program commitments pre-
clude the degree of involvement requested by the
lead agency, the responsible EPA official shall so
inform the lead agency in writing.
§6.1006 Exemptions and consider-
ations.
Under section 2-5 (b) and (c) of the Executive
Order, Federal agencies may provide for modifica-
tions in the contents, timing and availability of
documents or exemptions from certain require-
ments for the environmental review and assess-
ment. The responsible official, in consultation with
the Director, Office of Environmental Review
(OER), and the Director, Office of International
Activities (OIA), may approve modifications for
situations described in section 2-5(b). The respon-
sible official, in consultation with the Director,
OER and Director OIA, shall obtain exemptions
from the Administrator for situations described in
section 2-5(c). The Department of State and the
Council on Environmental Quality shall be con-
sulted as soon as possible on the utilization of
such exemptions.
§ 6.1007 Implementation.
(a) Oversight. OER is responsible for overseeing
the implementation of these procedures and shall
consult with OIA wherever appropriate. OIA shall
be utilized for making formal contacts with the
Department of State. OER shall assist the respon-
sible officials in carrying out their responsibilities
under these procedures.
30
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(b) Information exchange. OER with the aid of
OIA, shall assist the Department of State and the
Council on Environmental Quality in developing
the informational exchange on environmental re-
view activities with foreign nations.
(c) Unidentified activities. The responsible offi-
cial shall consult with OER and OIA to establish
the type of environmental review or document ap-
propriate for any new EPA activities or require-
ments imposed upon EPA by statute, international
agreement or other agreements.
APPENDIX A—STATEMENT OF PROCEDURES ON
FLOODPLAIN MANAGEMENT AND WETLANDS
PROTECTION
Contents:
Section 1 General
Section 2 Purpose
Policy
Section 3
Section 4
Definitions
Section 5 Applicability
Section 6 Requirements
Section 7 Implementation
Section 1 General
a. Executive Order 11988 entitled "Floodplain Man-
agement" dated May 24, 1977, requires Federal agencies
to evaluate the potential effects of actions it may take in
a floodplain to avoid adversely impacting floodplains
wherever possible, to ensure that its planning programs
and budget requests reflect consideration of flood hazards
and floodplain management, including the restoration and
preservation of such land areas as natural undeveloped
floodplains, and to prescribe procedures to implement the
policies and procedures of this Executive Order. Guidance
for implementation of the Executive Order has been pro-
vided by the U.S. Water Resources Council in its Flood-
plain Management Guidelines dated February 10, 1978
(see 40 FR 6030).
b. Executive Order 11990 entitled "Protection of Wet-
lands", dated May 24, 1977, requires Federal agencies to
take action to avoid adversely impacting wetlands wher-
ever possible, to minimize wetlands destruction and to
preserve the values of wetlands, and to prescribe proce-
dures to implement the policies and procedures of this
Executive Order.
c. It is the intent of these Executive Orders that, wher-
ever possible, Federal agencies implement the floodplains/
wetlands requirements through existing procedures, such
as those internal procedures established to implement the
National Environmental Policy Act (NEPA) and OMB A-
95 review procedures. In those instances where the envi-
ronmental impacts of a proposed action are not significant
enough to require an environmental impact statement
(EIS) pursuant to section 102(2)(C) of NEPA, or where
programs are not subject to the requirements of NEPA,
alternative but equivalent floo dp lain/wetlands evaluation
and notice procedures must be established.
Section 2 Purpose
a. The purpose of this Statement of Procedures is to set
forth Agency policy and guidance for carrying out the
provisions of Executive Orders 11988 and 11990.
Pt. 6, App. A
b. EPA program offices shall amend existing regula-
tions and procedures to incorporate the policies and pro-
cedures set forth in this Statement of Procedures.
c. To the extent possible, EPA shall accommodate the
requirements of Executive Orders 11988 and 11990
through the Agency NEPA procedures contained in 40
CFR part 6.
Section 3 Policy
a. The Agency shall avoid wherever possible the long
and short term impacts associated with the destruction of
wetlands and the occupancy and modification of
floodplains and wetlands, and avoid direct and indirect
support of floodplain and wetlands development wherever
there is a practicable alternative.
b. The Agency shall incorporate floodplain manage-
ment goals and wetlands protection considerations into its
planning, regulatory, and decisionmaking processes. It
shall also promote the preservation and restoration of
floodplains so that their natural and beneficial values can
be realized. To the extent possible EPA shall:
(1) Reduce the hazard and risk of flood loss and wher-
ever it is possible to avoid direct or indirect adverse im-
pact on floodplains;
(2) Where there is no practical alternative to locating
in a floodplain, minimize the impact of floods on human
safety, health, and welfare, as well as the natural environ-
ment;
(3) Restore and preserve natural and beneficial values
served by floodplains;
(4) Require the construction of EPA structures and fa-
cilities to be in accordance with the standards and criteria,
of the regulations promulgated pursuant to the National
Flood Insurance Program;
(5) Identify floodplains which require restoration and
preservation and recommend management programs nec-
essary to protect these floodplains and to include such
considerations as part of on-going planning programs; and
(6) Provide the public with early and continuing infor-
mation concerning floodplain management and with op-
portunities for participating in decision making including
the (evaluation of) tradeoffs among competing alter-
natives.
c. The Agency shall incorporate wetlands protection
considerations into its planning, regulatory, and decision-
making processes. It shall minimize the destruction, loss,
or degradation of wetlands and preserve and enhance the
natural and beneficial values of wetlands. Agency activi-
ties shall continue to be carried out consistent with the
Administrator's Decision Statement No. 4 dated February
21, 1973 entitled "EPA Policy to Protect the Nation's
Wetlands."
Section 4 Definitions
a. Base Flood means that flood which has a one per-
cent chance of occurrence in any given year (also known
as a 100-year flood). This term is used in the National
Flood Insurance Program (NFIP) to indicate the minimum
level of flooding to be used by a community in its flood-
plain management regulations.
b. Base Floodplain means the land area covered by a
100-year flood (one percent chance floodplain). Also see
definition of floodplain.
c. Flood or Flooding means a general and temporary
condition of partial or complete inundation of normally
dry land areas from the overflow of inland and/or tidal
31
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Pt. 6, App. A
waters, and/or the unusual and rapid accumulation or run- carried out to the maximum extent practicable in these
off of surface waters from any source, or flooding from programs.
any other source. c. These procedures shall not apply to any permitting
d. Floodplain means the lowland and relatively flat or source review programs of EPA once such authority
areas adjoining inland and coastal waters and other has been transferred or delegated to a State. However,
floodprone areas such as offshore islands, including at a EPA shall, to the extent possible, require States to provide
minimum, that area subject to a one percent or greater equivalent effort to assure support for the objectives of
chance of flooding in any given year. The base floodplain these procedures as part of the state assumption process.
shall be used to designate the 100-year floodplain (one
percent chance floodplain). The critical action floodplain Sectton 6 Requirements
is defined as the 500-year floodplain (0.2 percent chance a. Floodplain/Wetlands review of proposed Agency ac-
floodplain). tions.
e. Floodproofing means modification of individual (1) Floodplain/Wetlands Determination—Before under-
structures and facilities, their sites, and their contents to taking an Agency action, each program office must deter -
protect against structural failure, to keep water out or to mine whether or not the action will be located in or affect
reduce effects of water entry. a floodplain or wetlands. The Agency shall utilize maps
f Minimize means to reduce to the smallest possible prepared by the Federal Insurance Administration of the
amount or degree. Federal Emergency Management Agency (Flood Insur-
g. Practicable means capable of being done within ex- ance Rate Maps or Flood Hazard Boundary Maps), Fish
isting constraints. The test of what is practicable depends and Wildlife Service (National Wetlands Inventory Maps),
upon the situation and includes consideration of the perti- and other appropriate agencies to determine whether a
nent factors such as environment, community welfare, proposed action is located in or will likely affect a flood-
cost, or technology. plain or wetlands. If there is no fioodplain/wetlands im-
h. Preserve means to prevent modification to the natu- pact identified, the action may proceed without further
ral floodplain environment or to maintain it as closely as consideration of the remaining procedures set forth below.
possible to its natural state. (2) Early Public Notice—When it is apparent that a
i. Restore means to re-establish a setting or environ- proposed or potential agency action is likely to impact a
ment in which the natural functions of the floodplain can floodplain or wetlands, the public should be informed
again operate through appropriate public notice procedures.
j. Wetlands means those areas that are inundated by (3) Floodplain/Wetlands Assessment—If the Agency
surface or ground water with a frequency sufficient to determines a proposed action is located in or affects a
support and under normal circumstances does or would floodplain or wetlands, a floodplam/wetlands assessment
support a prevalence of vegetative or aquatic life that re- sha11 be undertaken. For those actions where an environ-
quires saturated or seasonally saturated soil conditions for mental assessment (EA) or environmental impact state-
growth and reproduction. Wetlands generally include ment (EIS) ls Prepared pursuant to 40 CFR part 6, the
swamps, marshes, bogs, and similar areas such as floodplam/wetlands assessment shall be prepared concur-
sloughs, potholes, wet meadows, river overflows, mud rently wlth these analyses and sha11 be mcluded m the EA
flats, and natural ponds. or EIS' In a11 other cases' a floodplam/wetlands assess-
ment shall be prepared. Assessments shall consist of a de-
Section 5 Applicability scription of the proposed action, a discussion of its effect
on the floodplain/wetlands, and shall also describe the al-
a. The Executive Orders apply to activities of Federal ternatlves considered
agencies pertaining to (1) acquiring, managing, and dis- (4) Public Review of Assessments—For proposed ac-
posmg of Federal lands and facilities, (2) providing Fed- tlons lmpactlrig floodplam/wetlands where an EA or EIS
erally undertaken, financed, or assisted construction and ls prepared, the opportunity for public review will be pro-
improvements, and (3) conducting Federal activities and vlded mrough the EIS provisions contained in 40 CFR
programs affecting land use, including but not limited to parts 6> 25, or 35, where appropriate. In other cases, an
water and related land resources planning, regulating, and equivalent public notice of the floodplam/wetlands assess-
hcensmg activities. ment shall be made consistent with the public mvolve-
b. These procedures shall apply to EPA's programs as ment requirements of the applicable program.
follows: (1) All Agency actions involving construction of (5) Minimize, Restore or Preserve—If there is no prac-
facihties or management of lands or property. This will ticable alternative to locating in or affecting the floodplain
require amendment of the EPA Facilities Management Or wetlands, the Agency shall act to minimize potential
Manual (October 1973 and revisions thereafter). harm to the floodplain or wetlands. The Agency shall also
(2) All Agency actions where the NEPA process ap- act to restore and preserve the natural and beneficial val-
phes. This would include the programs under sections Ues of floodplams and wetlands as part of the analysis of
306/402 of the Clean Water Act pertaining to new source all alternatives under consideration.
permitting and section 201 of the Clean Water Act per- (6) Agency Decision—After consideration of alternative
taining to wastewater treatment construction grants. actions, as they have been modified in the preceding anal-
(3) All agency actions where there is sufficient inde- ysis, the Agency shall select the desired alternative. For
pendent statutory authority to carry out the floodplain/ all Agency actions proposed to be in or affecting a flood-
wetlands procedures. plain/wetlands, the Agency shall provide further public
(4) In program areas where there is no EIS requirement notice announcing this decision. This decision shall be ac-
nor clear statutory authority for EPA to require procedural companied by a Statement of Findings, not to exceed
implementation, EPA shall continue to provide leadership three pages. This Statement shall include: (i) The reasons
and offer guidance so that the value of floodplain man- why the proposed action must be located in or affect the
agement and wetlands protection can be understood and floodplain or wetlands; (ii) a description of significant
32
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Pt. 6, App. A
facts considered in making the decision to locate in or af-
fect the floodplain or wetlands including alternative sites
and actions; (iii) a statement indicating whether the pro-
posed action conforms to applicable State or local flood-
plain protection standards; (iv) a description of the steps
taken to design or modify the proposed action to mini-
mize potential harm to or within the floodplain or wet-
lands; and (v) a statement indicating how the proposed
action affects the natural or beneficial values of the flood-
plain or wetlands. If the provisions of 40 CFR part 6
apply, the Statement of Findings may be incorporated in
the final EIS or in the environmental assessment. In other
cases, notice should be placed in the FEDERAL REGISTER
or other local medium and copies sent to Federal, State,
and local agencies and other entities which submitted
comments or are otherwise concerned with the floodplain/
wetlands assessment. For floodplain actions subject to Of-
fice of Management and Budget (OMB) Circular A-95,
the Agency shall send the Statement of Findings to State
and areawide A-95 clearinghouse in the geographic area
affected. At least 15 working days shall be allowed for
public and interagency review of the Statement of Find-
ings.
(7) Authorizations/Appropriations—Any requests for
new authorizations or appropriations transmitted to OMB
shall include, a floodplain/wetlands assessment and, for
floodplain impacting actions, a Statement of Findings, if
a proposed action will be located in a floodplain or wet-
lands.
b. Lead agency concept. To the maximum extent pos-
sible, the Agency shall relay on the lead agency concept
to carry out the provisions set forth in section 6.a of this
appendix. Therefore, when EPA and another Federal
agency have related actions, EPA shall work with the
other agency to identify which agency shall take the lead
in satisfying these procedural requirements and thereby
avoid duplication of efforts.
c. Additional floodplain management provisions relat-
ing to Federal property and facilities.
(1) Construction Activities—EPA controlled structures
and facilities must be constructed in accordance with ex-
isting criteria and standards set forth under the NFIP and
must include mitigation of adverse impacts wherever fea-
sible. Deviation from these requirements may occur only
to the extent NFIP standards are demonstrated as inappro-
priate for a given structure or facility.
(2) Flood Protection Measures—If newly constructed
structures or facilities are to be located in a floodplain,
accepted floodproofing and other flood protection meas-
ures shall be undertaken. To achieve flood protection,
EPA shall, wherever practicable, elevate structures above
the base flood level rather than filling land.
(3) Restoration and Preservation—As part of any EPA
plan or action, the potential for restoring and preserving
floodplains and wetlands so that their natural and bene-
ficial values can be realized must be considered and in-
corporated into the plan or action wherever feasible.
(4) Property Used by Public—If property used by the
public has suffered damage or is located in an identified
flood hazard area, EPA shall provide on structures, and
other places where appropriate, conspicuous indicators of
past and probable flood height to enhance public knowl-
edge of flood hazards.
(5) Transfer of EPA Property—When property in flood
plains is proposed for lease, easement, right-of-way, or
disposal to non-Federal public or private parties, EPA
shall reference in the conveyance those uses that are re-
stricted under Federal, State and local floodplain regula-
tions and attach other restrictions to uses of the property
as may be deemed appropriate. Notwithstanding, EPA
shall consider withholding such properties from convey-
ance.
Section 7 Implementation
a. Pursuant to section 2, the EPA program offices shall
amend existing regulations, procedures, and guidance, as
appropriate, to incorporate the policies and procedures set
forth in this Statement of Procedures. Such amendments
shall be made within six months of the date of these Pro-
cedures.
b. The Office of External Affairs (OEA) is responsible
for the oversight of the implementation of this Statement
of Procedures and shall be given advanced opportunity to
review amendments to regulations, procedures, and guid-
ance. OEA shall coordinate efforts with the program of-
fices to develop necessary manuals and more specialized
supplementary guidance to carry out this Statement of
Procedures.
[44 FR 64177, Nov. 6, 1976, as amended at 50 FR
26323, June 25, 1985]
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PART 7—NONDISCRIMINATION IN
PROGRAMS RECEIVING FEDERAL
ASSISTANCE FROM THE ENVI-
RONMENTAL PROTECTION
AGENCY
Subpart A—General
Sec.
7.10 Purpose of this part.
7.15 Applicability.
7.20 Responsible agency officers.
7.25 Definitions.
Subpart B—Discrimination Prohibited on
the Basis of Race, Color, National Ori-
gin or Sex
7.30 General prohibition.
7.35 Specific prohibitions.
Subpart C—Discrimination Prohibited on
the Basis of Handicap
7.45 General prohibition.
7.50 Specific prohibitions against discrimination.
7.55 Separate or different programs.
7.60 Prohibitions and requirements relating to employ-
ment.
7.65 Accessibility.
7.70 New construction.
7.75 Transition plan.
Subpart D—Requirements for Applicants
and Recipients
7.80 Applicants.
7.85 Recipients.
7.90 Grievance procedures.
7.95 Notice of nondiscrimination.
7.100 Intimidation and retaliation prohibited.
Subpart E—Agency Compliance
Procedures
7.105 General policy.
7.110 Preaward compliance.
7.115 Postaward compliance.
7.120 Complaint investigations.
7.125 Coordination with other agencies.
7.130 Actions available to EPA to obtain compliance.
7.135 Procedure for regaining eligibility.
APPENDIX A TO PART 7—EPA ASSISTANCE PROGRAMS
AS LISTED IN THE "CATALOG OF FEDERAL DOMES-
TIC ASSISTANCE"
AUTHORITY: 42 U.S.C. 2000d to 2000d-4; 29 U.S.C.
794; 33 U.S.C. 1251 nt.
SOURCE: 49 FR 1659, Jan. 12, 1984, unless otherwise
noted.
Subpart A—General
§ 7.10 Purpose of this part.
This part implements: Title VI of the Civil
Rights Act of 1964, as amended; section 504 of
the Rehabilitation Act of 1973, as amended; and
section 13 of the Federal Water Pollution Control
Act Amendments of 1972, Public Law 92-500,
(collectively, the Acts).
§7.15 Applicability.
This part applies to all applicants for, and re-
cipients of, EPA assistance in the operation of pro-
grams or activities receiving such assistance begin-
ning February 13, 1984. New construction (§7.70)
for which design was initiated prior to February
13, 1984, shall comply with the accessibility re-
quirements in the Department of Health, Education
and Welfare (now the Department of Health and
Human Services) nondiscrimination regulation, 45
CFR 84.23, issued June 3, 1977, or with equiva-
lent standards that ensure the facility is readily ac-
cessible to and usable by handicapped persons.
Such assistance includes but is not limited to that
which is listed in the Catalogue of Federal Do-
mestic Assistance under the 66.000 series. It super-
sedes the provisions of former 40 CFR parts 7 and
12.
§7.20 Responsible agency officers.
(a) The EPA Office of Civil Rights (OCR) is
responsible for developing and administering
EPA's compliance programs under the Acts.
(b) EPA's Project Officers will, to the extent
possible, be available to explain to each recipient
its obligations under this part and to provide re-
cipients with technical assistance or guidance upon
request.
§7.25 Definitions.
As used in this part:
Administrator means the Administrator of EPA.
It includes any other agency official authorized to
act on his or her behalf, unless explicity stated
otherwise.
Alcohol abuse means any misuse of alcohol
which demonstrably interferes with a person's
health, interpersonal relations or working ability.
Applicant means any entity that files an applica-
tion or unsolicited proposal or otherwise requests
EPA assistance (see definition for EPA assist-
ance).
Assistant Attorney General is the head of the
Civil Rights Division, U.S. Department of Justice.
Award Official means the EPA official with the
authority to approve and execute assistance agree-
ments and to take other assistance related actions
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§7.25
authorized by this part and by other EPA regula-
tions or delegation of authority.
Drug abuse means:
(a) The use of any drug or substance listed by
the Department of Justice in 21 CFR 1308.11,
under authority of the Controlled Substances Act,
21 U.S.C. 801, as a controlled substance unavail-
able for prescription because:
(1) The drug or substance has a high potential
for abuse,
(2) The drug or other substance has no currently
accepted medical use in treatment in the United
States, or
(3) There is a lack of accepted safety for use of
the drug or other substance under medical super-
vision.
NOTE: Examples of drugs under paragraph (a)(l) of this
section include certain opiates and opiate derivatives (e.g.,
heroin) and hallucinogenic substances (e.g., marijuana,
mescaline, peyote) and depressants (e.g., methaqualone).
Examples of (a)(2) include opium, coca leaves, metha-
done, amphetamines and barbiturates.
(b) The misuse of any drug or substance listed
by the Department of Justice in 21 CFR 1308.12-
1308.15 under authority of the Controlled Sub-
stances Act as a controlled substance available for
prescription.
EPA means the United States Environmental
Protection Agency.
EPA assistance means any grant or cooperative
agreement, loan, contract (other than a procure-
ment contract or a contract of insurance or guar-
anty), or any other arrangement by which EPA
provides or otherwise makes available assistance
in the form of:
(1) Funds;
(2) Services of personnel; or
(3) Real or personal property or any interest in
or use of such property, including:
(i) Transfers or leases of such property for less
than fair market value or for reduced consider-
ation; and
(ii) Proceeds from a subsequent transfer or lease
of such property if EPA's share of its fair market
value is not returned to EPA.
Facility means all, or any part of, or any inter-
ests in structures, equipment, roads, walks, parking
lots, or other real or personal property.
Handicapped person:
(a) Handicapped person means any person who
(1) has a physical or mental impairment which
substantially limits one or more major life activi-
ties, (2) has a record of such an impairment, or (3)
is regarded as having such an impairment. For
purposes of employment, the term handicapped
person does not include any person who is an al-
coholic or drug abuser whose current use of alco-
hol or drugs prevents such individual from per-
forming the duties of the job in question or whose
employment, by reason of such current drug or al-
cohol abuse, would constitute a direct threat to
property or the safety of others.
(b) As used in this paragraph, the phrase:
(1) Physical or mental impairment means (i)
any physiological disorder or condition, cosmetic
disfigurement, or anatomical loss affecting one or
more of the following body systems: Neurological;
musculoskeletal; special sense organs; respiratory,
including speech organs; cardiovascular; reproduc-
tive; digestive; genito-urinary; hemic and lym-
phatic; skin; and endocrine; and (ii) any mental or
psychological disorder, such as mental retardation,
organic brain syndrome, emotional or mental ill-
ness, and specific learning disabilities.
(2) Major life activities means functions such as
caring for one's self, performing manual tasks,
walking, seeing, hearing, speaking, breathing,
learning, and working.
(3) Has a record of such an impairment means
has a history of, or has been misclassified as hav-
ing, a mental or physical impairment that substan-
tially limits one or more major life activities.
(4) Is regarded as having an impairment means:
(i) Has a physical or mental impairment that
does not substantially limit major life activities but
that is treated by a recipient as constituting such
a limitation;
(ii) Has a physical or mental impairment that
substantially limits major life activities only as a
result of the attitudes of others toward such im-
pairment; or
(iii) Has none of the impairments defined above
but is treated by a recipient as having such an im-
pairment.
Office of Civil Rights or OCR means the Direc-
tor of the Office of Civil Rights, EPA Head-
quarters or his/her designated representative.
Project Officer means the EPA official des-
ignated in the assistance agreement (as defined in
EPA assistance) as EPA's program contact with
the recipient; Project Officers are responsible for
monitoring the project.
Qualified handicapped person means:
(a) With respect to employment: A handicapped
person who, with reasonable accommodation, can
perform the essential functions of the job in ques-
tion.
(b) With respect to services: A handicapped per-
son who meets the essential eligibility require-
ments for the receipt of such services.
Racial classifications:!
1 Additional subcategories based on national origin or
primary language spoken may be used where appropriate
on either a national or a regional basis. Subparagraphs (a)
through (e) are in conformity with Directive 15 of the Of-
fice of Federal Statistical Policy and Standards, whose
function is now in the Office of Information and Regu-
latory Affairs, Office of Management and Budget. Should
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§7.35
(a) American Indian or Alaskan native. A per-
son having origins in any of the original peoples
of North America, and who maintains cultural
identification through tribal affiliation or commu-
nity recognition.
(b) Asian or Pacific Islander. A person having
origins in any of the original peoples of the Far
East, Southeast Asia, the Indian subcontinent, or
the Pacific Islands. This area includes, for exam-
ple, China, Japan, Korea, the Philippine Islands,
and Samoa.
(c) Black and not of Hispanic origin. A person
having origins in any of the black racial groups of
Africa.
(d) Hispanic. A person of Mexican, Puerto
Rican, Cuban, Central or South American or other
Spanish culture or origin, regardless or race.
(e) White, not of Hispanic origin. A person hav-
ing origins in any of the original peoples of Eu-
rope, North Africa, or the Middle East.
Recipient means, for the purposes of this regula-
tion, any state or its political subdivision, any in-
strumentality of a state or its political subdivision,
any public or private agency, institution, organiza-
tion, or other entity, or any person to which Fed-
eral financial assistance is extended directly or
through another recipient, including any successor,
assignee, or transferee of a recipient, but excluding
the ultimate beneficiary of the assistance.
Section 13 refers to section 13 of the Federal
Water Pollution Control Act Amendments of
1972.
United States includes the states of the United
States, the District of Columbia, the Common-
wealth of Puerto Rico, the Virgin Islands, Amer-
ican Samoa, Guam, Wake Island, the Canal Zone,
and all other territories and possessions of the
United States; the term State includes any one of
the foregoing.
Subpart B—Discrimination Prohib-
ited on the Basis of Race,
Color, National Origin or Sex
§ 7.30 General prohibition.
No person shall be excluded from participation
in, be denied the benefits of, or be subjected to
discrimination under any program or activity re-
ceiving EPA assistance on the basis of race, color,
national origin, or on the basis of sex in any pro-
gram or activity receiving EPA assistance under
the Federal Water Pollution Control Act, as
amended, including the Environmental Financing
Act of 1972.
that office, or any successor office, change or otherwise
amend the categories listed in Directive 15, the categories
in this paragraph shall be interpreted to conform with any
such changes or amendments.
§ 7.35 Specific prohibitions.
(a) As to any program or activity receiving EPA
assistance, a recipient shall not directly or through
contractual, licensing, or other arrangements on
the basis of race, color, national origin or, if appli-
cable, sex:
(1) Deny a person any service, aid or other ben-
efit of the program;
(2) Provide a person any service, aid or other
benefit that is different, or is provided differently
from that provided to others under the program;
(3) Restrict a person in any way in the enjoy-
ment of any advantage or privilege enjoyed by
others receiving any service, aid, or benefit pro-
vided by the program;
(4) Subject a person to segregation in any man-
ner or separate treatment in any way related to re-
ceiving services or benefits under the program;
(5) Deny a person or any group of persons the
opportunity to participate as members of any plan-
ning or advisory body which is an integral part of
the program, such as a local sanitation board or
sewer authority;
(6) Discriminate in employment on the basis of
sex in any program subject to section 13, or on the
basis of race, color, or national origin in any pro-
gram whose purpose is to create employment; or,
by means of employment discrimination, deny in-
tended beneficiaries the benefits of the EPA assist-
ance program, or subject the beneficiaries to pro-
hibited discrimination.
(7) In administering a program or activity re-
ceiving Federal financial assistance in which the
recipient has previously discriminated on the basis
of race, color, sex, or national origin, the recipient
shall take affirmative action to provide remedies to
those who have been injured by the discrimination.
(b) A recipient shall not use criteria or methods
of administering its program which have the effect
of subjecting individuals to discrimination because
of their race, color, national origin, or sex, or have
the effect of defeating or substantially impairing
accomplishment of the objectives of the program
with respect to individuals of a particular race,
color, national origin, or sex.
(c) A recipient shall not choose a site or loca-
tion of a facility that has the purpose or effect of
excluding individuals from, denying them the ben-
efits of, or subjecting them to discrimination under
any program to which this part applies on the
grounds of race, color, or national origin or sex;
or with the purpose or effect of defeating or sub-
stantially impairing the accomplishment of the ob-
jectives of this subpart.
(d) The specific prohibitions of discrimination
enumerated above do not limit the general prohibi-
tion of §7.30.
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§7.45
Subpart C—Discrimination Prohib-
ited on the Basis of Handicap
§7.45 General prohibition.
No qualified handicapped person shall solely on
the basis of handicap be excluded from participa-
tion in, be denied the benefits of, or otherwise be
subjected to discrimination under any program or
activity receiving EPA assistance.
§7.50 Specific prohibitions against dis-
crimination.
(a) A recipient, in providing any aid, benefit or
service under any program or activity receiving
EPA assistance shall not, on the basis of handicap,
directly or through contractual, licensing, or other
arrangement:
(1) Deny a qualified handicapped person any
service, aid or other benefit of a federally assisted
program;
(2) Provide different or separate aids, benefits,
or services to handicapped persons or to any class
of handicapped persons than is provided to others
unless the action is necessary to provide qualified
handicapped persons with aids, benefits, or serv-
ices that are as effective as those provided to oth-
ers;
(3) Aid or perpetuate discrimination against a
qualified handicapped person by providing signifi-
cant assistance to an entity that discriminates on
the basis of handicap in providing aids, benefits,
or services to beneficiaries of the recipient's pro-
gram;
(4) Deny a qualified handicapped person the op-
portunity to participate as a member of planning
or advisory boards; or
(5) Limit a qualified handicapped person in any
other way in the enjoyment of any right, privilege,
advantage, or opportunity enjoyed by others re-
ceiving an aid, benefit or service from the pro-
gram.
(b) A recipient may not, in determining the site
or location of a facility, make selections: (1) That
have the effect of excluding handicapped persons
from, denying them the benefits of, or otherwise
subjecting them to discrimination under any pro-
gram or activity that receives or benefits from
EPA assistance or (2) that have the purpose or ef-
fect of defeating or substantially impairing the ac-
complishment of the objectives of the program or
activity receiving EPA assistance with respect to
handicapped persons.
(c) A recipient shall not use criteria or methods
of administering any program or activity receiving
EPA assistance which have the effect of subjecting
individuals to discrimination because of their
handicap, or have the effect of defeating or sub-
stantially impairing accomplishment of the objec-
tives of such program or activity with respect to
handicapped persons.
(d) Recipients shall take appropriate steps to en-
sure that communications with their applicants,
employees, and beneficiaries are available to per-
sons with impaired vision and hearing.
(e) The exclusion of non-handicapped persons
or specified classes of handicapped persons from
programs limited by Federal statute or Executive
Order to handicapped persons or a different class
of handicapped persons is not prohibited by this
subpart.
§7.55 Separate or different programs.
Recipients shall not deny a qualified handi-
capped person an opportunity equal to that af-
forded others to participate in or benefit from the
aid, benefit, or service in the program receiving
EPA assistance. Recipients shall administer pro-
grams in the most integrated setting appropriate to
the needs of qualified handicapped persons.
§7.60 Prohibitions and requirements
relating to employment.
(a) No qualified handicapped person shall, on
the basis of handicap, be subjected to discrimina-
tion in employment under any program or activity
that receives or benefits from Federal assistance.
(b) A recipient shall make all decisions concern-
ing employment under any program or activity to
which this part applies in a manner which ensures
that discrimination on the basis of handicap does
not occur, and shall not limit, segregate, or clas-
sify applicants or employees in any way that ad-
versely affects their opportunities or status because
of handicap.
(c) The prohibition against discrimination in
employment applies to the following activities:
(1) Recruitment, advertising, and the processing
of applications for employment;
(2) Hiring, upgrading, promotion, award of ten-
ure, demotion, transfer, layoff, termination, right
of return from layoff, and rehiring;
(3) Rates of pay or any other form of com-
pensation and changes in compensation;
(4) Job assignments, job classifications, organi-
zational structures, position descriptions, lines of
progression, and seniority lists;
(5) Leaves of absence, sick leave, or any other
leave;
(6) Fringe benefits available by virtue of em-
ployment, whether or not administered by the re-
cipient;
(7) Selection and financial support for training,
including apprenticeship, professional meetings,
conferences, and other related activities, and selec-
tion for leaves of absence to pursue training;
(8) Employer sponsored activities, including so-
cial or recreational programs; or
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§7.70
(9) Any other term, condition, or privilege of
employment.
(d) A recipient shall not participate in a contrac-
tual or other relationship that has the effect of sub-
jecting qualified handicapped applicants or em-
ployees to discrimination prohibited by this sub-
part. The relationships referred to in this paragraph
include relationships with employment and referral
agencies, with labor unions, with organizations
providing or administering fringe benefits to em-
ployees of the recipient, and with organizations
providing training and apprenticeship programs.
(e) A recipient shall make reasonable accommo-
dation to the known physical or mental limitations
of an otherwise qualified handicapped applicant or
employee unless the recipient can demonstrate that
the accommodation would impose an undue hard-
ship on the operation of its program.
(f) A recipient shall not use employment tests or
criteria that discriminate against handicapped per-
sons and shall ensure that employment tests are
adapted for use by persons who have handicaps
that impair sensory, manual, or speaking skills.
(g) A recipient shall not conduct a
preemployment medical examination or make a
preemployment inquiry as to whether an applicant
is a handicapped person or as to the nature or se-
verity of a handicap except as permitted by the
Department of Justice in 28 CFR 42.513.
§7.65 Accessibility.
(a) General. A recipient shall operate each pro-
gram or activity receiving EPA assistance so that
such program or activity, when viewed in its en-
tirety, is readily accessible to and usable by handi-
capped persons. This paragraph does not:
(1) Necessarily require a recipient to make each
of its existing facilities or every part of an existing
facility accessible to and usable by handicapped
persons.
(2) Require a recipient to take any action that
the recipient can demonstrate would result in a
fundamental alteration in the nature of its program
or activity or in undue financial and administrative
burdens. If an action would result in such an alter-
nation or such financial and administrative bur-
dens, the recipient shall be required to take any
other action that would not result in such an alter-
ation or financial and administrative burdens but
would nevertheless ensure that handicapped per-
sons receive the benefits and services of the pro-
gram or activity receiving EPA assistance.
(b) Methods of making existing programs acces-
sible. A recipient may comply with the accessibil-
ity requirements of this section by making struc-
tural changes, redesigning equipment, reassigning
services to accessible buildings, assigning aides to
beneficiaries, or any other means that make its
program or activity accessible to handicapped per-
sons. In choosing among alternatives, a recipient
must give priority to methods that offer program
benefits to handicapped persons in the most inte-
grated setting appropriate.
(c) Deadlines. (1) Except where structural
changes in facilities are necessary, recipients must
adhere to the provisions of this section within 60
days after the effective date of this part.
(2) Recipients having an existing facility which
does require alterations in order to make a pro-
gram or activity accessible must prepare a transi-
tion plan in accordance with § 7.75 within six
months from the effective date of this part. The re-
cipient must complete the changes as soon as pos-
sible, but not later than three years from date of
award.
(d) Notice of accessibility. The recipient must
make sure that interested persons, including those
with impaired vision or hearing, can find out about
the existence and location of the assisted program
services, activities, and facilities that are accessible
to and usable by handicapped persons.
(e) Structural and financial feasibility. This sec-
tion does not require structural alterations to exist-
ing facilities if making such alterations would not
be structurally or financially feasible. An alteration
is not structurally feasible when it has little likeli-
hood of being accomplished without removing or
altering a load-bearing structural member. Finan-
cial feasibility shall take into account the degree
to which the alteration work is to be assisted by
EPA assistance, the cost limitations of the program
under which such assistance is provided, and the
relative cost of accomplishing such alterations in
manners consistent and inconsistent with acces-
sibility.
§7.70 New construction.
(a) General. New facilities shall be designed
and constructed to be readily accessible to and us-
able by handicapped persons. Alterations to exist-
ing facilities shall, to the maximum extent fea-
sible, be designed and constructed to be readily
accessible to and usable by handicapped persons.
(b) Conformance with Uniform Federal Acces-
sibility Standards. (1) Effective as of January 18,
1991, design, construction, or alteration of build-
ings in conformance with sections 3-8 of the Uni-
form Federal Accessibility Standards (USAF) (ap-
pendix A to 41 CFR subpart 101-19.6) shall be
deemed to comply with the requirements of this
section with respect to those buildings. Departures
from particular technical and scoping requirements
of UFAS by the use of other methods are per-
mitted where substantially equivalent or greater
access to and usability of the building is provided.
(2) For purposes of this section, section
4.1.6(l)(g) of UFAS shall be interpreted to exempt
from the requirements of UFAS only mechanical
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§7.75
rooms and other spaces that, because of their in-
tended use, will not require accessibility to the
public or beneficiaries or result in the employment
or residence therein of persons with physical
handicaps.
(3) This section does not require recipients to
make building alterations that have little likelihood
of being accomplished without removing or alter-
ing a load-bearing structural member.
[49 FR 1659, Jan. 12, 1984, as amended at 55 FR 52138,
52142, Dec. 19, 1990]
§7.75 Transition plan.
If structural changes to facilities are necessary
to make the program accessible to handicapped
persons, a recipient must prepare a transition plan.
(a) Requirements. The transition plan must set
forth the steps needed to complete the structural
changes required and must be developed with the
assistance of interested persons, including handi-
capped persons or organizations representing
handicapped persons. At a minimum, the transition
plan must:
(1) Identify the physical obstacles in the recipi-
ent's facilities that limit handicapped persons' ac-
cess to its program or activity,
(2) Describe in detail what the recipient will do
to make the facilities accessible,
(3) Specify the schedule for the steps needed to
achieve full program accessibility, and include a
year-by-year timetable if the process will take
more than one year,
(4) Indicate the person responsible for carrying
out the plan.
(b) Availability. Recipients shall make available
a copy of the transition plan to the OCR upon re-
quest and to the public for inspection at either the
site of the project or at the recipient's main office.
Subpart D—Requirements for
Applicants and Recipients
§ 7.80 Applicants.
(a) Assurances—(1) General. Applicants for
EPA assistance shall submit an assurance with
their applications stating that, with respect to their
programs or activities that receive EPA assistance,
they will comply with the requirements of this
part. Applicants must also submit any other infor-
mation that the OCR determines is necessary for
preaward review. The applicant's acceptance of
EPA assistance is an acceptance of the obligation
of this assurance and this part.
(2) Duration of assurance—(i) Real property.
When EPA awards assistance in the form of real
property, or assistance to acquire real property, or
structures on the property, the assurance will obli-
gate the recipient, or transferee, during the period
the real property or structures are used for the pur-
pose for which EPA assistance is extended, or for
another purpose in which similar services or bene-
fits are provided. The transfer instrument shall
contain a covenant running with the land which
assures nondiscrimination. Where applicable, the
covenant shall also retain a right of reverter which
will permit EPA to recover the property if the
covenant is ever broken.
(ii) Personal property. When EPA provides as-
sistance in the form of personal property, the as-
surance will obligate the recipient for so long as
it continues to own or possess the property.
(iii) Other forms of assistance. In all other
cases, the assurance will obligate the recipient for
as long as EPA assistance is extended.
(b) Wastevtater treatment project. EPA Form
4700^1 shall also be submitted with applications
for assistance under Title II of the Federal Water
Pollution Control Act.
(c) Compliance information. Each applicant for
EPA assistance shall submit regarding the program
or activity that would receive EPA assistance:
(1) Notice of any lawsuit pending against the
applicant alleging discrimination on the basis of
race, color, sex, handicap, or national origin;
(2) A brief description of any applications pend-
ing to other federal agencies for assistance, and of
Federal assistance being provided at the time of
the application; and
(3) A statement describing any civil rights com-
pliance reviews regarding the applicant conducted
during the two-year period before the application,
and information concerning the agency or organi-
zation performing the reviews.
(Approved by the Office of Management and Budget
under control number 2000-0006)
§ 7.85 Recipients.
(a) Compliance information. Each recipient shall
collect, maintain, and on request of the OCR, pro-
vide the following information to show compli-
ance with this part:
(1) A brief description of any lawsuits pending
against the recipient that allege discrimination
which this part prohibits;
(2) Racial/ethnic, national origin, sex and handi-
cap data, or EPA Form 4700^1 information sub-
mitted with its application;
(3) A log of discrimination complaints which
identifies the complaint, the date it was filed, the
date the recipient's investigation was completed,
the disposition, and the date of disposition; and
(4) Reports of any compliance reviews con-
ducted by any other agencies.
(b) Additional compliance information. If nec-
essary, the OCR may require recipients to submit
data and information specific to certain programs
to determine compliance where there is reason to
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§7.110
believe that discrimination may exist in a program
or activity receiving EPA assistance or to inves-
tigate a complaint alleging discrimination in a pro-
gram or activity receiving EPA assistance. Re-
quests shall be limited to data and information
which is relevant to determining compliance and
shall be accompanied by a written statement sum-
marizing the complaint or setting forth the basis
for the belief that discrimination may exist.
(c) Self-evaluation. Each recipient must conduct
a self-evaluation of its administrative policies and
practices, to consider whether such policies and
practices may involve handicap discrimination pro-
hibited by this part. When conducting the self-
evaluation, the recipient shall consult with inter-
ested and involved persons including handicapped
persons or organizations representing handicapped
persons. The evaluation shall be completed within
18 months after the effective date of this part.
(d) Preparing compliance information. In prepar-
ing compliance information, a recipient must:
(1) [Reserved]
(2) Use the racial classifications set forth in
§ 7.25 in determining categories of race, color or
national origin.
(e) Maintaining compliance information. Recipi-
ents must keep records for paragraphs (a) and (b)
of this section for three (3) years after completing
the project. When any complaint or other action
for alleged failure to comply with this part is
brought before the three-year period ends, the re-
cipient shall keep records until the complaint is re-
solved.
(f) Accessibility to compliance information. A
recipient shall:
(1) Give the OCR access during normal busi-
ness hours to its books, records, accounts and
other sources of information, including its facili-
ties, as may be pertinent to ascertain compliance
with this part;
(2) Make compliance information available to
the public upon request; and
(3) Assist in obtaining other required informa-
tion that is in the possession of other agencies, in-
stitutions, or persons not under the recipient's con-
trol. If such party refuses to release that informa-
tion, the recipient shall inform the OCR and ex-
plain its efforts to obtain the information.
(g) Coordination of compliance effort. If the re-
cipient employs fifteen (15) or more employees, it
shall designate at least one person to coordinate its
efforts to comply with its obligations under this
part.
(Approved by the Office of Management and Budget
under control number 2000-0006)
§ 7.90 Grievance procedures.
(a) Requirements. Each recipient shall adopt
grievance procedures that assure the prompt and
fair resolution of complaints which allege violation
of this part.
(b) Exception. Recipients with fewer than fifteen
(15) full-time employees need not comply with
this section unless the OCR finds a violation of
this part or determines that creating a grievance
procedure will not significantly impair the recipi-
ent's ability to provide benefits or services.
§ 7.95 Notice of nondiscrimination.
(a) Requirements. A recipient shall provide ini-
tial and continuing notice that it does not discrimi-
nate on the basis of race, color, national origin, or
handicap in a program or activity receiving EPA
assistance or, in programs covered by section 13,
on the basis of sex. Methods of notice must ac-
commodate those with impaired vision or hearing.
At a minimum, this notice must be posted in a
prominent place in the recipient's offices or facili-
ties. Methods of notice may also include publish-
ing in newspapers and magazines, and placing no-
tices in recipient's internal publications or on re-
cipient's printed letterhead. Where appropriate,
such notice must be in a language or languages
other than English. The notice must identify the
responsible employee designated in accordance
with §7.85.
(b) Deadline. Recipients of assistance must pro-
vide initial notice by thirty (30) calendar days
after award and continuing notice for the duration
of EPA assistance.
§7.100 Intimidation and retaliation
prohibited.
No applicant, recipient, nor other person shall
intimidate, threaten, coerce, or discriminate against
any individual or group, either:
(a) For the purpose of interfering with any right
or privilege guaranteed by the Acts or this part, or
(b) Because the individual has filed a complaint
or has testified, assisted or participated in any way
in an investigation, proceeding or hearing under
this part, or has opposed any practice made unlaw-
ful by this regulation.
Subpart E—Agency Compliance
Procedures
§7.105 General policy.
EPA's Administrator, Director of the Office of
Civil Rights, Project Officers and other responsible
officials shall seek the cooperation of applicants
and recipients in securing compliance with this
part, and are available to provide help.
§7.110 Preaward compliance.
(a) Review of compliance information. Within
EPA's application processing period, the OCR will
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§7.115
determine whether the applicant is in compliance
with this part and inform the Award Official. This
determination will be based on the submissions re-
quired by §7.80 and any other information EPA
receives during this time (including complaints) or
has on file about the applicant. When the OCR
cannot make a determination on the basis of this
information, additional information will be re-
quested from the applicant, local government offi-
cials, or interested persons or organizations, in-
cluding handicapped persons or organizations rep-
resenting such persons. The OCR may also con-
duct an on-site review only when it has reason to
believe discrimination may be occurring in a pro-
gram or activity which is the subject of the appli-
cation.
(b) Voluntary compliance. If the review indi-
cates noncompliance, an applicant may agree in
writing to take the steps the OCR recommends to
come into compliance with this part. The OCR
must approve the written agreement before any
award is made.
(c) Refusal to comply. If the applicant refuses to
enter into such an agreement, the OCR shall fol-
low the procedure established by paragraph (b) of
§7.130.
§7.115 Postaward compliance.
(a) Periodic review. The OCR may periodically
conduct compliance reviews of any recipient's
programs or activities receiving EPA assistance,
including the request of data and information, and
may conduct on-site reviews when it has reason to
believe that discrimination may be occurring in
such programs or activities.
(b) Notice of review. After selecting a recipient
for review or initiating a complaint investigation
in accordance with §7.120, the OCR will inform
the recipient of:
(1) The nature of and schedule for review, or
investigation; and
(2) Its opportunity, before the determination in
paragraph (d) of this section is made, to make a
written submission responding to, rebutting, or de-
nying the allegations raised in the review or com-
plaint.
(c) Postreview notice. (1) Within 180 calendar
days from the start of the compliance review or
complaint investigation, the OCR will notify the
recipient in writing by certified mail, return receipt
requested, of:
(i) Preliminary findings;
(ii) Recommendations, if any, for achieving vol-
untary compliance; and
(iii) Recipient's right to engage in voluntary
compliance negotiations where appropriate.
(2) The OCR will notify the Award Official and
the Assistant Attorney General for Civil Rights of
the preliminary findings of noncompliance.
(d) Formal determination of noncompliance.
After receiving the notice of the preliminary find-
ing of noncompliance in paragraph (c) of this sec-
tion, the recipient may:
(1) Agree to the OCR's recommendations, or
(2) Submit a written response sufficient to dem-
onstrate that the preliminary findings are incorrect,
or that compliance may be achieved through steps
other than those recommended by OCR.
If the recipient does not take one of these actions
within fifty (50) calendar days after receiving this
preliminary notice, the OCR shall, within fourteen
(14) calendar days, send a formal written deter-
mination of noncompliance to the recipient and
copies to the Award Official and Assistant Attor-
ney General.
(e) Voluntary compliance time limits. The recip-
ient will have ten (10) calendar days from receipt
of the formal determination of noncompliance in
which to come into voluntary compliance. If the
recipient fails to meet this deadline, the OCR must
start proceedings under paragraph (b) of §7.130.
(f) Form of voluntary compliance agreements.
All agreements to come into voluntary compliance
must:
(1) Be in writing;
(2) Set forth the specific steps the recipient has
agreed to take, and
(3) Be signed by the Director, OCR or his/her
designee and an official with authority to legally
bind the recipient.
§7.120 Complaint investigations.
The OCR shall promptly investigate all com-
plaints filed under this section unless the com-
plainant and the party complained against agree to
a delay pending settlement negotiations.
(a) Who may file a complaint. A person who be-
lieves that he or she or a specific class of persons
has been discriminated against in violation of this
part may file a complaint. The complaint may be
filed by an authorized representative. A complaint
alleging employment discrimination must identify
at least one individual aggrieved by such discrimi-
nation. Complaints solely alleging employment
discrimination against an individual on the basis of
race, color, national origin, sex or religion shall be
processed under the procedures for complaints of
employment discrimination filed against recipients
of federal assistance (see 28 CFR part 42, subpart
H and 29 CFR part 1691). Complainants are en-
couraged but not required to make use of any
grievance procedure established under §7.90 be-
fore filing a complaint. Filing a complaint through
a grievance procedure does not extend the 180 day
calendar requirement of paragraph (b)(2 of this
section.
(b) Where, when and how to file complaint. The
complainant may file a complaint at any EPA of-
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§7.130
fice. The complaint may be referred to the region
in which the alleged discriminatory acts occurred.
(1) The complaint must be in writing and it
must describe the alleged discriminatory acts
which violate this part.
(2) The complaint must be filed within 180 cal-
endar days of the alleged discriminatory acts, un-
less the OCR waives the time limit for good
cause. The filing of a grievance with the recipient
does not satisfy the requirement that complaints
must be filed within 180 days of the alleged dis-
criminatory acts.
(c) Notification. The OCR will notify the com-
plainant and the recipient of the agency's receipt
of the complaint within five (5) calendar days.
(d) Complaint processing procedures. After ac-
knowledging receipt of a complaint, the OCR will
immediately initiate complaint processing proce-
dures.
(1) Preliminary investigation (i) Within twenty
(20) calendar days of acknowledgment of the com-
plaint, the OCR will review the complaint for ac-
ceptance, rejection, or referral to the appropriate
Federal agency.
(ii) If the complaint is accepted, the OCR will
notify the complainant and the Award Official.
The OCR will also notify the applicant or recipi-
ent complained against of the allegations and give
the applicant or recipient opportunity to make a
written submission responding to, rebutting, or de-
nying the allegations raised in the complaint.
(iii) The party complained against may send the
OCR a response to the notice of complaint within
thirty (30) calendar days of receiving it.
(2) Informal resolution, (i) OCR shall attempt to
resolve complaints informally whenever possible.
When a complaint cannot be resolved informally,
OCR shall follow the procedures established by
paragraphs (c) through (e) of §7.115.
(e) Confidentiality. EPA agrees to keep the
complainant's identity confidential except to the
extent necessary to carry out the purposes of this
part, including the conduct of any investigation,
hearing, or judicial proceeding arising thereunder.
Ordinarily in complaints of employment discrimi-
nation, the name of the complainant will be given
to the recipient with the notice of complaint.
(f) [Reserved]
(g) Dismissal of complaint. If OCR's investiga-
tion reveals no violation of this part, the Director,
OCR, will dismiss the complaint and notify the
complainant and recipient.
§7.125 Coordination with other agen-
cies.
If, in the conduct of a compliance review or an
investigation, it becomes evident that another
agency has jurisdiction over the subject matter,
OCR will cooperate with that agency during the
continuation of the review of investigation. EPA
will:
(a) Coordinate its efforts with the other agency,
and
(b) Ensure that one of the agencies is designated
the lead agency for this purpose. When an agency
other than EPA serves as the lead agency, any ac-
tion taken, requirement imposed, or determination
made by the lead agency, other than a final deter-
mination to terminate funds, shall have the same
effect as though such action had been taken by
EPA.
§7.130 Actions available to EPA to ob-
tain compliance.
(a) General. If compliance with this part cannot
be assured by informal means, EPA may terminate
or refuse to award or to continue assistance. EPA
may also use any other means authorized by law
to get compliance, including a referral of the mat-
ter to the Department of Justice.
(b) Procedure to deny, annul, suspend or termi-
nate EPA assistance.
(1) OCR finding. If OCR determines that an ap-
plicant or recipient is not in compliance with this
part, and if compliance cannot be achieved volun-
tarily, OCR shall make a finding of noncompli-
ance. The OCR will notify the applicant or recipi-
ent (by registered mail, return receipt requested) of
the finding, the action proposed to be taken, and
the opportunity for an evidentiary hearing.
(2) Hearing, (i) Within 30 days of receipt of the
above notice, the applicant or recipient shall file a
written answer, under oath or affirmation, and may
request a hearing.
(ii) The answer and request for a hearing shall
be sent by registered mail, return receipt re-
quested, to the Chief Administrative Law Judge
(ALJ) (A-110), United States Environmental Pro-
tection Agency, 401 M Street, SW., Washington,
DC 20460. Upon receipt of a request for a hear-
ing, the ALJ will send the applicant or recipient
a copy of the ALJ's procedures. If the recipient
does not request a hearing, it shall be deemed to
have waived its right to a hearing, and the OCR
finding shall be deemed to be the ALJ's deter-
mination.
(3) Final decision and disposition, (i) The appli-
cant or recipient may, within 30 days of receipt of
the ALJ's determination, file with the Adminis-
trator its exceptions to that determination. When
such exceptions are filed, the Administrator may,
within 45 days after the ALJ's determination,
serve to the applicant or recipient, a notice that he/
she will review the determination. In the absence
of either exceptions or notice of review, the ALJ's
determination shall constitute the Administrator's
final decision.
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§7.135
(ii) If the Administrator reviews the ALJ's de-
termination, all parties shall be given reasonable
opportunity to file written statements. A copy of
the Administrator's decision will be sent to the ap-
plicant or recipient.
(iii) If the Administrator's decision is to deny
an application, or annul, suspend or terminate EPA
assistance, that decision becomes effective thirty
(30) days from the date on which the Adminis-
trator submits a full written report of the cir-
cumstances and grounds for such action to the
Committees of the House and Senate having legis-
lative jurisdiction over the program or activity in-
volved. The decision of the Administrator shall not
be subject to further administrative appeal under
EPA's General Regulation for Assistance Pro-
grams (40 CFR part 30, subpart L).
(4) Scope of decision. The denial, annulment,
termination or suspension shall be limited to the
particular applicant or recipient who was found to
have discriminated, and shall be limited in its ef-
fect to the particular program or the part of it in
which the discrimination was found.
§7.135 Procedure for regaining eligi-
bility.
(a) Requirements. An applicant or recipient
whose assistance has been denied, annulled, termi-
nated, or suspended under this part regains eligi-
bility as soon as it:
(1) Provides reasonable assurance that it is com-
plying and will comply with this part in the future,
and
(2) Satisfies the terms and conditions for regain-
ing eligibility that are specified in the denial, an-
nulment, termination or suspension order.
(b) Procedure. The applicant or recipient must
submit a written request to restore eligibility to the
OCR declaring that it has met the requirements set
forth in paragraph (a) of this section. Upon deter-
mining that these requirements have been met, the
OCR must notify the Award Official, and the ap-
plicant or recipient that eligibility has been re-
stored.
(c) Rights on denial of restoration of eligibility.
If the OCR denies a request to restore eligibility,
the applicant or recipient may file a written re-
quest for a hearing before the EPA Chief Admin-
istrative Law Judge in accordance with paragraph
(c) §7.130, listing the reasons it believes the OCR
was in error.
APPENDIX A TO PART 7—EPA ASSISTANCE PRO-
GRAMS AS LISTED IN THE "CATALOG OF
FEDERAL DOMESTIC ASSISTANCE"
1. Assistance provided by the Office of Air, Noise and
Radiation under the Clean Air Act of 1977, as amended;
Pub. L. 95-95, 42 U.S.C. 7401 et seq. (ANR 66.001)
2. Assistance provided by the Office of Air, Noise and
Radiation under the Clean Air Act of 1977, as amended;
Pub. L. 95-95, 42 U.S.C. 7401 et seq. (ANR 66.003)
3. Assistance provided by the Office of Water under
the Clean Water Act of 1977, as amended; sections
101(e), 109(b), 201-05, 207, 208(d), 210-12, 215-19,
304(d)(3), 313, 501, 502, 511 and 516(b); Pub. L. 97-
117; Pub. L. 95-217; Pub. L. 96-483; 33 U.S.C. 1251 et
seq. (OW 66.418)
4. Assistance provided by the Office of Water under
the Clean Water Act of 1977, as amended; section 106;
Pub. L. 95-217; 33 U.S.C. 1251 et seq. (OW 66.419)
5. Assistance provided by the Office of Water under
the Clean Water Act of 1977, as amended; Pub. L. 95-
217; 33 U.S.C. 1251 et seq. (OW 66.426)
6. Assistance provided by the Office of Water under
the Public Health Service Act, as amended by the Safe
Drinking Water Act, Pub. L. 93-523; as amended by Pub.
L. 93-190; Pub. L. 96-63; and Pub. L. 93-502. (OW
66.432)
7. Assistance provided by the Office of Water under
the Safe Drinking Water Act, Pub. L. 93-523, as amend-
ed by Pub. L. 96^3, Pub. L. 95-190, and Pub. L. 96-
502. (OW 66.433)
8. Assistance provided by the Office of Water under
the Clean Water Act of 1977, section 205(g), as amended
by Pub. L. 95-217 and the Federal Water Pollution Con-
trol Act, as amended; Pub. L. 97-117; 33 U.S.C. 1251 et
seq. (OW 66.438)
9. Assistance provided by the Office of Water under
the Resource Conservation and Recovery Act of 1976; as
amended by the Solid Waste Disposal Act; Pub. L. 94-
580; section 3011, 42 U.S.C. 6931, 6947, 6948-49. (OW
66.802).
10. Assistance provided by the Office of Research and
Development under the Clean Air Act of 1977, as amend-
ed; Pub. L. 95-95; 42 U.S.C. et seq.; Clean Water Act
of 1977, as amended; Pub. L. 95-217; 33 U.S.C. 1251 et
seq., section 8001 of the Solid Water Disposal Act, as
amended by the Resource Conservation and Recovery Act
of 1976; Pub. L. 94-580; 42 U.S.C. 6901, Public Health
Service Act as amended by the Safe Drinking Water Act
as amended by Pub. L. 95-190; Federal Insecticide, Fun-
gicide and Rodenticide Act; Pub. L. 95-516; 7 U.S.C.
136 et seq., as amended by Pub. L.'s 94-140 and 95-396;
Toxic Substances Control Act; 15 U.S.C. 2609; Pub. L.
94-469. (ORD 66.500)
11. Assistance provided by the Office of Research and
Development under the Clean Air Act of 1977, as amend-
ed; Pub. L. 95-95; 42 U.S.C. 7401 et seq. (ORD 66.501)
12. Assistance provided by the Office of Research and
Development under the Federal Insecticide, Fungicide and
Rodenticide Act, Pub. L. 95-516, 7 U.S.C. 136 et seq.,
as amended by Pub. L.'s 94-140 and 95-396. (ORD
66.502)
13. Assistance provided by the Office of Research and
Development under the Solid Waste Disposal Act, as
amended by the Resource Conservation and Recovery Act
of 1976; 42 U.S.C. 6901, Pub. L. 94-580, section 8001.
(ORD 66.504)
14. Assistance provided by the Office of Research and
Development under the Clean Water Act of 1977, as
amended; Pub. L. 95-217; 33 U.S.C. 1251 et seq. (ORD
66.505)
15. Assistance provided by the Office of Research and
Development under the Public Health Service Act as
10
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Pt. 7, App. A
amended by the Safe Drinking Water Act, as amended by
Pub. L. 95-190 (ORD 66.506)
16. Assistance provided by the Office of Research and
Development under the Toxic Substances Control Act;
Pub. L. 94^69; 15 U.S.C. 2609; section 10. (ORD
66.507)
17. Assistance provided by the Office of Administra-
tion, including but not limited to: Clean Air Act of 1977,
as amended, Pub. L. 95-95; 42 U.S.C. 7401 et seq., Clean
Water Act of 1977, as amended; Pub. L. 95-217; 33
U.S.C. 1251 et seq.; Solid Waste Disposal Act, as amend-
ed by the Resource Conservation and Recovery Act of
1976; 42 U.S.C. 6901; Pub. L. 94-580; Federal Insecti-
cide, Fungicide and Rodenticide Act; Pub. L. 92-516; 7
U.S.C. 136 et seq. as amended by Pub. L.'s 94-140 and
95-396; Public Health Service Act, as amended by the
Safe Drinking Water Act, as amended by Pub. L. 95-190.
(OA 66.600)
18. Assistance provided by the Office of Administra-
tion under the Clean Water Act of 1977, as amended;
Pub. L. 95-217; section 213; 33 U.S.C. 1251 et seq. (OA
66.603)
19. Assistance provided by the Office of Enforcement
Counsel under the Federal Insecticide and Rodenticide
Act, as amended; Pub. L. 92-516; 7 U.S.C. 136 et seq.,
as amended by Pub. L. 94-140, section 23(a) and Pub. L.
95-396. (OA 66.700)
20. Assistance provided by the Office of Solid Waste
and Emergency Response under the Comprehensive Envi-
ronmental Responses, Compensation and Liability Act of
1980; Pub. L. 96-510, section 3012, 42 U.S.C. 9601, et
seq. (OSW—number not to be assigned since Office of
Management and Budget does not catalog one-year pro-
grams.)
21. Assistance provided by the Office of Water under
the Clean Water Act as amended; Pub. L. 97-117, 33
U.S.C. 1313. (OW—66.454)
11
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PART 8—ENVIRONMENTAL IMPACT
ASSESSMENT OF NONGOVERN-
MENTAL ACTIVITIES IN ANTARC-
TICA
Sec.
8.1 Purpose.
8.2 Applicability and effect.
8.3 Definitions.
8.4 Preparation of environmental documents, generally.
8.5 Submission of environmental documents.
8.6 Preliminary environmental review.
8.7 Initial environmental evaluation.
8.8 Comprehensive environmental evaluation.
8.9 Measures to assess and verify environmental im-
pacts.
Cases of emergency.
Prohibited acts, enforcement and penalties.
Coordination of reviews from other Parties.
AUTHORITY: 16 U.S.C. 2401 et seq., as amended, 16
U.S.C. 2403a.
SOURCE: 62 FR 23545, Apr. 30, 1997, unless otherwise
noted.
§8.1 Purpose.
(a) This part is issued pursuant to the Antarctic
Science, Tourism, and Conservation Act of 1996.
As provided in that Act, this part implements the
requirements of Article 8 and Annex I to the Pro-
tocol on Environmental Protection to the Antarctic
Treaty of 1959 and provides for:
(1) the environmental impact assessment of non-
governmental activities, including tourism, for
which the United States is required to give ad-
vance notice under paragraph 5 of Article VII of
the Antarctic Treaty of 1959; and
(2) coordination of the review of information re-
garding environmental impact assessment received
by the United States from other Parties under the
Protocol.
(b) The procedures in this part are designed to:
Ensure that nongovernmental operators identify
and assess the potential impacts of their proposed
activities, including tourism, on the Antarctic envi-
ronment; that operators consider these impacts in
deciding whether or how to proceed with proposed
activities; and that operators provide environ-
mental documentation pursuant to the Act and
Annex I of the Protocol. These procedures are
consistent with and implement the environmental
impact assessment provisions of Article 8 and
Annex I to the Protocol on Environmental Protec-
tion to the Antarctic Treaty.
§8.2 Applicability and effect.
(a) This part is intended to ensure that potential
environmental effects of nongovernmental activi-
ties undertaken in Antarctica are appropriately
identified and considered by the operator during
the planning process and that to the extent prac-
ticable, appropriate environmental safeguards
which would mitigate or prevent adverse impacts
on the Antarctic environment are identified by the
operator.
(b) The requirements set forth in this part apply
to nongovernmental activities for which the United
States is required to give advance notice under
paragraph 5 of Article VII of the Antarctic Treaty
of 1959: All nongovernmental expeditions to and
within Antarctica organized in or proceeding from
its territory.
(c) This part does not apply to activities under-
taken in the Antarctic Treaty area that are gov-
erned by the Convention on the Conservation of
Antarctic Marine Living Resources or the Conven-
tion for the Conservation of Antarctic Seals. Per-
sons traveling to Antarctica are subject to the re-
quirements of the Marine Mammal Protection Act,
16 U.S.C. 1371 et seq.
(d) This part is effective on April 30, 1997.
This part will expire upon the earlier of the end
of the 1998-99 austral summer season or upon is-
suance of a final regulation.
§ 8.3 Definitions.
As used in this part:
Act means 16 U.S.C. 2401 et seq., Public Law
104-227, the Antarctic Science, Tourism, and
Conservation Act of 1996.
Annex I refers to Annex I, Environmental Im-
pact Assessment, of the Protocol.
Antarctica means the Antarctic Treaty area; i.e.,
the area south of 60 degrees south latitude.
Antarctic environment means the natural and
physical environment of Antarctica and its depend-
ent and associated ecosystems, but excludes social,
economic, and other environments.
Antarctic Treaty area means the area south of
60 degrees south latitude.
Antarctic Treaty Consultative Meeting (ATCM)
means a meeting of the Parties to the Antarctic
Treaty, held pursuant to Article IX(1) of the Trea-
ty-
Comprehensive Environmental Evaluation
(CEE) means a study of the reasonably foreseeable
potential effects of a proposed activity on the Ant-
arctic environment, prepared in accordance with
the provisions of this part and includes all com-
ments received thereon. (See: 40 CFR 8.8.)
Environmental document or environmental doc-
umentation (Document) means a preliminary envi-
ronmental review memorandum, an initial environ-
mental evaluation, or a comprehensive environ-
mental evaluation.
Environmental impact assessment (E1A) means
the environmental review process required by the
provisions of this part and by Annex I of the Pro-
tocol, and includes preparation by the operator and
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§8.4
U.S. government review of an environmental doc-
ument, and public access to and circulation of en-
vironmental documents to other Parties and the
Committee on Environmental Protection as re-
quired by Annex I of the Protocol.
EPA means the Environmental Protection Agen-
cy.
Expedition means any activity undertaken by
one or more nongovernmental persons organized
within or proceeding from the United States to or
within the Antarctic Treaty area for which advance
notification is required under Paragraph 5 of Arti-
cle VII of the Treaty.
Impact means impact on the Antarctic environ-
ment and dependent and associated ecosystems.
Initial Environmental Evaluation (IEE) means a
study of the reasonably foreseeable potential ef-
fects of a proposed activity on the Antarctic envi-
ronment prepared in accordance with 40 CFR 8.7.
Operator or operators means any person or per-
sons organizing a nongovernmental expedition to
or within Antarctica.
Person has the meaning given that term in sec-
tion 1 of title 1, United States Code, and includes
any person subject to the jurisdiction of the United
States except that the term does not include any
department, agency, or other instrumentality of the
Federal Government.
Preliminary environmental review means the en-
vironmental review described under that term in
40 CFR 8.6.
Preliminary Environmental Review Memoran-
dum (PERM) means the documentation supporting
the conclusion of the preliminary environmental
review that the impact of a proposed activity will
be less than minor or transitory on the Antarctic
environment.
Protocol means the Protocol on Environmental
Protection to the Antarctic Treaty, done at Madrid,
October 4, 1991, and all annexes thereto which are
in force for the United States.
This part means 40 CFR part 8.
§8.4 Preparation of environmental
documents, generally.
(a) Basic information requirements. In addition
to the information required pursuant to other sec-
tions of this part, all environmental documents
shall contain the following:
(1) The name, mailing address, and phone num-
ber of the operator;
(2) The anticipated date(s) of departure of each
expedition to Antarctica;
(3) An estimate of the number of persons in
each expedition;
(4) The means of conveyance of expedition(s)
to and within Antarctica;
(5) Estimated length of stay of each expedition
in Antarctica;
(6) Information on proposed landing sites in
Antarctica; and
(7) Information concerning training of staff, su-
pervision of expedition members, and what other
measures, if any, that will be taken to avoid or
minimize possible environmental impacts.
(b) Preparation of an environmental document.
Unless an operator determines and documents that
a proposed activity will have less than a minor or
transitory impact on the Antarctic environment, the
operator will prepare an IEE or CEE in accord-
ance with this part. In making the determination
what level of environmental documentation is ap-
propriate, the operator should consider, as applica-
ble, whether and to what degree the proposed ac-
tivity:
(1) Has the potential to adversely affect the
Antarctic environment;
(2) May adversely affect climate or weather pat-
terns;
(3) May adversely affect air or water quality;
(4) May affect atmospheric, terrestrial (including
aquatic), glacial, or marine environments;
(5) May detrimentally affect the distribution,
abundance, or productivity of species, or popu-
lations of species of fauna and flora;
(6) May further jeopardize endangered or threat-
ened species or populations of such species;
(7) May degrade, or pose substantial risk to,
areas of biological, scientific, historic, aesthetic, or
wilderness significance;
(8) Has highly uncertain environmental effects,
or involves unique or unknown environmental
risks; or
(9) Together with other activities, the effects of
any one of which is individually insignificant, may
have at least minor or transitory cumulative envi-
ronmental effects.
(c) Type of environmental document. The type
of environmental document required under this
part depends upon the nature and intensity of the
environmental impacts that could result from the
activity under consideration. A PERM must be
prepared by the operator to document the conclu-
sion of the operator's preliminary environmental
review that the impact of a proposed activity on
the Antarctic environment will be less than minor
or transitory. (See: 40 CFR 8.6.) An IEE must be
prepared by the operator for proposed activities
which may have at least (but no more than) a
minor or transitory impact on the Antarctic envi-
ronment. (See: 40 CFR 8.7.) A CEE must be pre-
pared by the operator if an IEE indicates, or if it
is otherwise determined, that a proposed activity is
likely to have more than a minor or transitory im-
pact on the Antarctic environment (See: 40 CFR
o o \
O.O.J
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§8.7
(d) Incorporation of information and consolida-
tion of environmental documentation (1) An opera-
tor may incorporate material into an environmental
document by referring to it in the document when
the effect will be to reduce paperwork without im-
peding the review of the environmental document
by EPA and other Federal agencies. The incor-
porated material shall be cited and its content
briefly described. No material may be incorporated
by referring to it in the document unless it is rea-
sonably available to the EPA.
(2) Provided that environmental documentation
complies with all applicable provisions of Annex
I to the Protocol and this part and is appropriate
in light of the specific circumstances of the opera-
tor's proposed expedition or expeditions, an opera-
tor may include more than one proposed expedi-
tion within one environmental document and one
environmental document may also be used to ad-
dress expeditions being carried out by more than
one operator provided that the environmental doc-
ument indicates the names of each operator for
which the environmental documentation is being
submitted pursuant to obligations under this part.
§8.5 Submission of environmental doc-
uments.
(a) An operator shall submit environmental doc-
umentation to the EPA for review. The EPA, in
consultation with other interested federal agencies,
will carry out a review to determine if the submit-
ted environmental documentation meets the re-
quirements of Article 8 and Annex I of the Proto-
col and the provisions of this part. The EPA will
provide its comments, if any, on the environmental
documentation to the operator and will consult
with the operator regarding any suggested revi-
sions. If EPA has no comments, or if the docu-
mentation is satisfactorily revised in response to
EPA's comments, and the operator does not re-
ceive a notice from EPA that the environmental
documentation does not meet the requirements of
Article 8 and Annex I of the Protocol and the pro-
visions of this part, the operator will have no fur-
ther obligations pursuant to the applicable require-
ments of this part provided that any appropriate
measures, which may include monitoring, are put
in place to assess and verify the impact of the ac-
tivity. Alternatively, following final response from
the operator, the EPA, in consultation with other
federal agencies and with the concurrence of the
National Science Foundation, will inform the oper-
ator that EPA finds that the environmental docu-
mentation does not meet the requirements of Arti-
cle 8 and Annex I of the Protocol and the provi-
sions of this part. If the operator then proceeds
with the expedition without fulfilling the require-
ments of this part, the operator is subject to en-
forcement proceedings pursuant to sections 7, 8,
and 9 of the Antarctic Conservation Act, as
amended by the Act; 16 U.S.C. 2407, 2408, 2409,
and 45 CFR part 672.
(b) The EPA may waive or modify deadlines
pursuant to this part where EPA determines an op-
erator is acting in good faith and that cir-
cumstances outside the control of the operator cre-
ated delays, provided that the environmental docu-
mentation fully meets deadlines under the Proto-
col.
§8.6 Preliminary environmental re-
view.
(a) Unless an operator has determined to pre-
pare an IEE or CEE, the operator shall conduct a
preliminary environmental review that assesses the
potential direct and reasonably foreseeable indirect
impacts on the Antarctic environment of the pro-
posed expedition. A Preliminary Environmental
Review Memorandum (PERM) shall contain suffi-
cient detail to assess whether the proposed activity
may have less than a minor or transitory impact,
and shall be submitted to the EPA for review no
less than 180 days before the proposed departure
of the expedition. The EPA, in consultation with
other interested federal agencies, will review the
PERM to determine if it is sufficient to dem-
onstrate that the activity will have less than a
minor or transitory impact or whether additional
environmental documentation, i.e., an IEE or CEE,
is required to meet the obligations of Article 8 and
Annex I of the Protocol. The EPA will provide its
comments to the operator within fifteen (15) days
of receipt of the PERM, and the operator shall
have seventy-five (75) days to prepare a revised
PERM or an IEE, if necessary. Following the final
response from the operator, EPA may make a
finding that the environmental documentation sub-
mitted does not meet the requirements of Article
8 and Annex I of the Protocol and the provisions
of this part. This finding will be made with the
concurrence of the National Science Foundation. If
EPA does not provide such notice within thirty
(30) days, the operator will be deemed to have
met the requirements of this part provided that any
required procedures, which may include appro-
priate monitoring, are put in place to assess and
verify the impact of the activity.
(b) If EPA recommends an IEE and one is pre-
pared and submitted within the seventy-five (75)
day response period, it will be reviewed under the
time frames set out for an IEE in 40 CFR 8.7. If
EPA recommends a CEE and one is prepared, it
will be reviewed under the time frames set out for
a CEE in 40 CFR 8.8.
§8.7 Initial environmental evaluation.
(a) Submission of IEE to the EPA. Unless a
PERM has been submitted pursuant to 40 CFR 8.6
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§8.8
which meets the environmental documentation re-
quirements under Article 8 and Annex I to the
Protocol and the provisions of this part or a CEE
is being prepared, an IEE shall be submitted by
the operator to the EPA no fewer than ninety (90)
days before the proposed departure of the expedi-
tion.
(b) Contents. An IEE shall contain sufficient de-
tail to assess whether a proposed activity may
have more than a minor or transitory impact on
the Antarctic environment and shall include the
following information:
(1) A description of the proposed activity, in-
cluding its purpose, location, duration, and inten-
sity; and
(2) Consideration of alternatives to the proposed
activity and any impacts that the proposed activity
may have on the Antarctic environment, including
consideration of cumulative impacts in light of ex-
isting and known proposed activities.
(c) Further environmental review. (1) The EPA,
in consultation with other interested federal agen-
cies, will review an IEE to determine whether the
IEE meets the requirements under Annex I to the
Protocol and the provisions of this part. The EPA
will provide its comments to the operator within
thirty (30) days of receipt of the IEE, and the op-
erator will have forty-five (45) days to prepare a
revised IEE, if necessary. Following the final re-
sponse from the operator, EPA may make a find-
ing that the documentation submitted does not
meet the requirements of Article 8 and Annex I of
the Protocol and the provisions of this part. This
finding will be made with the concurrence of the
National Science Foundation. If such a notice is
required, EPA will provide it within fifteen (15)
days of receiving the final IEE from the operator
or, if the operator does not provide a final IEE,
within sixty (60) days following EPA's comments
on the original IEE. If EPA does not provide no-
tice within these time limits, the operator will be
deemed to have met the requirements of this part
provided that any required procedures, which may
include appropriate monitoring, are put in place to
assess and verify the impact of the activity.
(2) If a CEE is required, the operator must ad-
here to the time limits applicable to such docu-
mentation. (See: 40 CFR 8.8.) In this event EPA,
at the operator's request, will consult with the op-
erator regarding possible changes in the proposed
activity which would allow preparation of an IEE.
§ 8.8 Comprehensive environmental
evaluation.
(a) Preparation of a CEE. Unless a PERM or
an IEE has been submitted and determined to meet
the environmental documentation requirements of
this part, the operator shall prepare a CEE. A CEE
shall contain sufficient information to enable in-
formed consideration of the reasonably foreseeable
potential environmental effects of a proposed ac-
tivity and possible alternatives to that proposed ac-
tivity. A CEE shall include the following:
(1) A description of the proposed activity, in-
cluding its purpose, location, duration and inten-
sity, and possible alternatives to the activity, in-
cluding the alternative of not proceeding, and the
consequences of those alternatives;
(2) A description of the initial environmental
reference state with which predicted changes are
to be compared and a prediction of the future en-
vironmental reference state in the absence of the
proposed activity;
(3) A description of the methods and data used
to forecast the impacts of the proposed activity;
(4) Estimation of the nature, extent, duration
and intensity of the likely direct impacts of the
proposed activity;
(5) A consideration of possible indirect or sec-
ond order impacts from the proposed activity;
(6) A consideration of cumulative impacts of
the proposed activity in light of existing activities
and other known planned activities;
(7) Identification of measures, including mon-
itoring programs, that could be taken to minimize
or mitigate impacts of the proposed activity and to
detect unforeseen impacts and that could provide
early warning of any adverse effects of the activity
as well as to deal promptly and effectively with
accidents;
(8) Identification of unavoidable impacts of the
proposed activity;
(9) Consideration of the effects of the proposed
activity on the conduct of scientific research and
on other existing uses and values;
(10) An identification of gaps in knowledge and
uncertainties encountered in compiling the infor-
mation required under this section;
(11) A non-technical summary of the informa-
tion provided under this section; and
(12) The name and address of the person or or-
ganization which prepared the CEE and the ad-
dress to which comments thereon should be di-
rected.
(b) Submission of Draft CEE to the EPA and
Circulation to Other Parties. (1) For the 1998-
1999 season, any operator who plans a nongovern-
mental expedition which would require a CEE
must submit a draft of the CEE by December 1,
1997. Within fifteen (15) days of receipt of the
draft CEE, EPA will: send it to the Department of
State which will circulate it to all Parties to the
Protocol and forward it to the Committee for En-
vironmental Protection established by the Protocol,
and publish notice of receipt of the CEE and re-
quest for comments on the CEE in the FEDERAL
REGISTER, and will provide copies to any person
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§8.11
upon request. The EPA will accept public com-
ments on the CEE for a period of ninety (90) days
following notice in the FEDERAL REGISTER. The
EPA, in consultation with other interested federal
agencies, will evaluate the CEE to determine if the
CEE meets the requirements under Article 8 and
Annex I to the Protocol and the provisions of this
part and will transmit its comments to the operator
within 120 days following publication in the FED-
ERAL REGISTER of the notice of availability of the
CEE.
(2) The operator shall send a final CEE to EPA
at least seventy-five (75) days before commence-
ment of the proposed activity in the Antarctic
Treaty area. The CEE must include (or summa-
rize) any comments on the draft CEE received
from EPA, the public, and the Parties, including
comments offered at the XXII Antarctic Treaty
Consultative Meeting in 1998. Following the final
response from the operator, the EPA will inform
the operator if EPA, with the concurrence of the
National Science Foundation, makes the finding
that the environmental documentation submitted
does not meet the requirements of Article 8 and
Annex I of the Protocol and the provisions of this
part. This notification will occur within fifteen
(15) days of submittal of the final CEE by the op-
erator if the final CEE is submitted by the opera-
tor within the time limits set out in this section.
If no final CEE is submitted or the operator fails
to meet these time limits, EPA will provide such
notification sixty (60) days prior to departure of
the expedition. If EPA does not provide such no-
tice, the operator will be deemed to have met the
requirements of this part provided that procedures,
which include appropriate monitoring, are put in
place to assess and verify the impact of the activ-
ity. The EPA will transmit the CEE, along with a
notice of any decisions by the operator relating
thereto, to the Department of State which shall cir-
culate it to all Parties no later than sixty (60) days
before commencement of the proposed activity in
the Antarctic Treaty area. The EPA will also pub-
lish a notice of availability of the final CEE in the
FEDERAL REGISTER.
(3) No final decision shall be taken to proceed
with any activity for which a CEE is prepared un-
less there has been an opportunity for consider-
ation of the draft CEE by the Antarctic Treaty
Consultative Meeting on the advice of the Com-
mittee for Environmental Protection, provided that
no expedition need be delayed through the oper-
ation of paragraph 5 of Article 3 to Annex I of the
Protocol for longer than 15 months from the date
of circulation of the draft CEE.
(c) Decisions based on CEE. The decision to
proceed, based on environmental documentation
that meets the requirements under Article 8 and
Annex I to the Protocol and the provisions of this
part, rests with the operator. Any decision by an
operator on whether to proceed with or modify a
proposed activity for which a CEE was required
shall be based on the CEE and other relevant con-
siderations.
§8.9 Measures to assess and verify en-
vironmental impacts.
(a) The operator shall conduct appropriate mon-
itoring of key environmental indicators as pro-
posed in the CEE to assess and verify the potential
environmental impacts of activities which are the
subject of a CEE. The operator may also need to
carry out monitoring in order to assess and verify
the impact of an activity for which an IEE has
been prepared.
(b) All proposed activities for which an IEE or
CEE has been prepared shall include procedures
designed to provide a regular and verifiable record
of the impacts of these activities, in order, inter
alia, to:
(1) Enable assessments to be made of the extent
to which such impacts are consistent with the Pro-
tocol; and
(2) Provide information useful for minimizing
and mitigating those impacts, and, where appro-
priate, information on the need for suspension,
cancellation, or modification of the activity.
§8.10 Cases of emergency.
This part shall not apply to activities taken in
cases of emergency relating to the safety of human
life or of ships, aircraft, equipment and facilities
of high value, or the protection of the environ-
ment, which require an activity to be undertaken
without completion of the procedures set out in
this part. Notice of any such activities which
would have otherwise required the preparation of
a CEE shall be provided within fifteen (15) days
to the Department of State, as provided below, for
circulation to all Parties to the Protocol and to the
Committee on Environmental Protection, and a full
explanation of the activities carried out shall be
provided within forty-five (45) days of those ac-
tivities. Notification shall be provided to: The Di-
rector, The Office of Oceans Affairs, OES/OA,
Room 5805, Department of State, 2201 C Street,
NW, Washington, DC 20520-7818.
§8.11 Prohibited acts, enforcement
and penalties.
(a) It shall be unlawful for any operator to vio-
late this part.
(b) An operator who violates any of this part is
subject to enforcement, which may include civil
and criminal enforcement proceedings, and pen-
alties, pursuant to sections 7, 8, and 9 of the Ant-
arctic Conservation Act, as amended by the Act;
-------
§8.12
16 U.S.C. 2407, 2408, 2409, and 45 CFR part
672.
§8.12 Coordination of reviews from
other Parties.
(a) Upon receipt of a draft CEE from another
Party, the Department of State shall publish notice
in the FEDERAL REGISTER and shall circulate a
copy of the CEE to all interested federal agencies.
The Department of State shall coordinate re-
sponses from federal agencies to the CEE and
shall transmit the coordinated response to the
Party which has circulated the CEE. The Depart-
ment of State shall make a copy of the CEE avail-
able upon request to the public.
(b) Upon receipt of the annual list of lEEs from
another Party prepared in accordance with Article
2 of Annex I and any decisions taken in con-
sequence thereof, the Department of State shall
circulate a copy to all interested federal agencies.
The Department of State shall make a copy of the
list of lEEs prepared in accordance with Article 2
and any decisions taken in consequence thereof
available upon request to the public.
(c) Upon receipt of a description of appropriate
national procedures for environmental impact
statements from another Party, the Department of
State shall circulate a copy to all interested federal
agencies. The Department of State shall make a
copy of these descriptions available upon request
to the public.
(d) Upon receipt from another Party of signifi-
cant information obtained, and any action taken in
consequence therefrom from procedures put in
place with regard to monitoring pursuant to Arti-
cles 2(2) and 5 of Annex I to the Protocol, the De-
partment of State shall circulate a copy to all in-
terested federal agencies. The Department of State
shall make a copy of this information available
upon request to the public.
(e) Upon receipt from another Party of a final
CEE, the Department of State shall circulate a
copy to all interested federal agencies. The Depart-
ment of State shall make a copy available upon re-
quest to the public.
-------
PART 9—OMB APPROVALS UNDER
THE PAPERWORK REDUCTION ACT
40 CFR citation
OMB control
No.
AUTHORITY: 7 U.S.C. 135 et seq., 136-136y; 15 U.S.C. 35.2025 2040-0027
2001 2003 2005 2006 2601-2671' 21 USC 331j 35.2034 2040-0027
346a 348- 31 USC 9701- 33 USC 1251e/veo 1311 35.2040 2040-0027
3toa, its, 31 u.o.L,. y/ui, 33 u.o.L,. l/Dl el seq., 1311, 352105-352107 2040-0027
1313d, 1314, 1318, 1321, 1326, 1330, 1342, 1344, 1345 352110 2040-0027
(d) and (e), 1361; E.O. 11735, 38 FR 21243, 3 CFR, 352114 2040-0027
1971-1975 Comp. p. 973; 42 U.S.C. 241, 242b, 243, 246, 35^2118 !^^^^^^^^^^^^^^^^^^^ 2040-0027
300f, 300g, 300g-l, 300g-2, 300g-3, 300g^, 300g-5, 35.2120 2040-0027
300g-6, 300J-1, 300J-2, 300j-3, 300.M, 300j-9, 1857 et 35-2127
seq., 6901-6992k, 7401-7671q, 7542, 9601-9657, 11023, 352140 2040-0027
11048- 35.2211-35.2212 2040-0027
35.2215-35.2216 2040-0027
§9.1 OMB approvals under the Paper- 352218 2040-0027
work Reduction Act. 35.3010 2040-0095
35.3030 2040-0095
This part consolidates the display of control 35.3130 2040-0118
numbers assigned to collections of information in 35.3135 2040-0118
certain EPA regulations by the Office of Manage- 35.3140 204CW)118
ment and Budget (OMB) under the Paperwork Re- 35.3150 2040-0118
duction Act (PRA). This part fulfills the require- 35.3155 2040-0118
ments of section 3507(f) of the PRA. 35.3160 2040^118
35.3170 2040-0118
35.6055(a)(2) 2010-0020
35.6055(b)(1) 2010-0020
40 CFR citation OMB control 35.6055(b)(2)(i)-(ii) 2010-0020
N°- 35.6105(a)(2)(i)-(v), (vii) 2010-0020
35.6110(b)(2) 2010-0020
Public Information 35.6120 2010-0020
35.6145 2010-0020
Part 2, subpartB 2050-0143 35.6155(a)] (c) 2010-0020
,_,..,... „ , _„. 35.6230(3), (c) 2010-0020
General Regulation for Assistance Programs for Other 35 63oo(aH31 2010-0020
than State and Local Governments 356315(c) 2010-0020
—— 2030-0020 35'632° •••••••••••••••••••••••••••••••••••••••••••••••••••••••••• 2010-0020
J0-400 20JO-0020 35.6340(a) 2010-0020
30-50° 2030-0020 35.6350 2010^)020
30.501 2030-0020 35 6500 2010-0020
3°'503 2030-0020 35.e550(aK1)(ii) 2010^020
30-505 2030-0020 35.6550(b)(1)(iii) 2010-0020
30-510 2030-0020 35.6550(b)(2)(i) 2010-0020
30.520 2030-0020 35 6585 2010-0020
30.530 2030-0020 35.6595(3) 2010-0020
30.531 2030-0020 35.6600(a) 2010-0020
30.532 2030-0020 356650 2010-0020
30.535 2030-0020 35 6655 2010-0020
30.1002 2030-0020 356660 2010-0020
30.1003 2030-0020 35.6665(a) 2010-0020
30.1200 2030-0020 35.6700 2010-0020
35.6705 2010-0020
Uniform Administrative Requirements for Grants and 35.6710 2010-0020
Cooperative Agreements to State and Local Govern- 356805 2010-0020
ments 35.6815 (a), (d), (e) 2010-0020
35.9000-35.9070 2040-0138
31.10 2030-0020
31.20-31.21 2030-0020 Requirements for Preparation, Adoption, and Submittal of
31.31-31.32 2030-0020 Implementation Plans
31.36(g)-31.36(h) 2030-0020
31.40 2030-0020 51.160-51.166 2060-0003
31.42 2030-0020 51.321-51.323 2060-0088
31.6 2030-0020 51.353-51.354 2060-0252
51.365-51.366 2060-0252
Procurement Under Assistance Agreements 51.370-51.371 2060-0252
51.850-51.860 2060-0279
33.110 2030-0003
33.211 2030-0003 Approval and Promulgation of Implementation Plans
State and Local Assistance
52.21 ..
52.741
2060-0003
2060-0203
35.2015
2040-0027
-------
§9.1
40 CFR citation
OMB control
No.
Outer Continental Shelf Air Regulations
55.4-55.8
55.11-55.14
Ambient Air Quality Surveil
58.11-58.14
58.20-58.23
58.25-58.28
58.30-58.31
58.33
58.35
58.40-58.41
58.43
58.45
58.50
2060-0249
2060-0249
lance
2060-0084
2060-0084
2060-0084
2060-0084
2060-0084
2060-0084
2060-0084
2060-0084
2060-0084
2060-0084
Standards of Performance for New Stationary Sources1
60.7(d)
60.45-60.47
60.46a-60.49a
60.40b
60.42b
60.44b-60.49b
60.42C
60.44c-60.48c
60.53-60.54
60.503
60.56a-60.59a
60.63-60.65
60.73-60.74
60.84-60.85
60.93
60.104-60.108
60.113a-60.115a
60.113b-60.116b
60.123
60.133
60.142-60.144
60.143a-60.145a
60.153-60.155
60.1 92(b)
60.194-60.195
60.203-60.204
60.213-60.214
60.223-60.224
60.233-60.234
60.243-60.244
60.253-60.254
60.273-60.276
60.273a-60.276a
60.284-60.286
60.292-60.293
60.296
60.303
60.310
60.313-60.316
60.334-60.335
60.343-60.344
60.373-60.374
60.384-60.386
60.393-60.396
60.398
60.403-60.404
60.433-60.435
60.443-60.447
60.453-60.456
60.463-60.466
60.473-60.474
2060-0207
2060-0026
2060-0023
2060-0072
2060-0072
2060-0072
2060-0202
2060-0202
2060-0040
2060-0210
2060-0210
2060-0025
2060-0019
2060-0041
2060-0083
2060-0022
2060-0121
2060-0074
2060-0080
2060-0110
2060-0029
2060-0029
2060-0035
2060-0031
2060-0031
2060-0037
2060-0037
2060-0037
2060-0037
2060-0037
2060-0122
2060-0038
2060-0038
2060-0021
2060-0054
2060-0054
2060-0082
2060-0106
2060-0106
2060-0028
2060-0063
2060-0081
2060-0016
2060-0034
2060-0034
2060-0111
2060-0105
2060-0004
2060-0108
2060-0107
2060-0002
40 CFR citation
60.482-2
60 482-3
60.482^1
60.482-7
60 482-8
60.482-10
60 483 1
60.483-2
60.484-60.487
60.493-60.496
60.502-60.503
60.505
60.530-60.536
60.537 (a)(1)-(2), (a)(4)-(5), (b)-(i)
60.538-60.539
60.543 (b)(2)-(4), (c)-(n)
60.544
60 545 (a)-(d) (f)
60.546 (a)-(e), (f)(4)-(6), (g)-(j)
60 547
60.562-1
60.562-2
60.563-60.565
60.580
60.583-60.585
60.592-60.593
60.603-60.604
60.613-60.615
60.622
60.624-60.625
60.632-60.636
60.640
60.642-60.644
60.646-60.647
60.663-60.665
60.670
60.672
60.674-60.676
60.683-60.685
60.692-1
60.692-2
60.692-3
60.692^1
60.692-5
60.693-1
60.693-2
60.695-60.698
60.703-60.705
60.710
60.713-60.717
60.722-60.725
60.734-60.736
60.740
60.743-60.747
OMB control
No.
2060-0012
2060-0012
2060-0012
2060-0012
2060-001 2
2060-0012
2060-001 2
2060-0012
2060-0012
2060-0001
2060-0006
2060-0006
2060-0161
2060-0161
2060-0161
2060-0156
2060-0156
2060-01 56
2060-0156
2060-01 56
2060-0145
2060-0145
2060-0145
2060-0073
2060-0073
2060-0067
2060-0059
2060-0197
2060-0079
2060-0079
2060-0120
2060-0120
2060-0120
2060-0120
2060-0197
2060-0050
2060-0050
2060-0050
2060-0114
2060-0172
2060-0172
2060-0172
2060-0172
2060-0172
2060-0172
2060-0172
2060-0172
2060-0269
2060-0171
2060-0171
2060-0162
2060-0251
2060-0181
2060-0181
National Emission Standards for Hazardous Air
Pollutants2
61.24-61.25
61.32-61.34
61.53-61.55
61.65(b)-(d)
61.67-61.71
61.93-61.95
61.103-61.105
61.107
61.123-61.124
61.126
61.132-61.133
61.135-61.139
61.142
2060-0191
2060-0092
2060-0097
2060-0071
2060-0071
2060-0191
2060-0191
2060-0191
2060-0191
2060-0191
2060-0185
2060-0185
2060-0101
-------
§9.1
40 CFR citation OMB^control
61.144-61.147
61.149
61.150-61.155
61.163-61.165
61.203
61.206-61.209
61.223-61.224
61.242-1
61.242-2
61.242-3
61.242-4
61.242-7
61.242-8
61.242-10
61.242-11
61.243-1
61.243-2
61.244-61.247
61.253-61.255
61.271-61.276
61.300
61.302-61.305
61.342
61.344-61.349
61.354-61.357
2060-0101
2060-0101
2060-0101
2060-0043
2060-0191
2060-0191
2060-0191
2060-0068
2060-0068
2060-0068
2060-0068
2060-0068
2060-0068
2060-0068
2060-0068
2060-0068
2060-0068
2060-0068
2060-0191
2060-0185
2060-0182
2060-0182
2060-0183
2060-0183
2060-0183
National Emission Standards for Hazardous Air
Pollutants for Source Categories3
63.5(d)
63.52-63.56
63.72
63.74-63.79
63.91-63.96
63.103
63.105
63.117-63.118
63.122-63.123
63.129-63.130
63.146-63.148
63.151-63.152
63.181-63.182
63.302-63.311
63.322-63.325
63.345-63.347
63.363-63.367
63.403-63.406
63.420
63.422-63.428
63.467-63.468
63.525-63.528
63.548-63.550
63.563-63.567
63.653
63.654
63.703-63.707
63.752-63.753
63.787 (a)-(b)
63.788 (a)-(c)
63.806-63.807
63.829-63.830
63.1311
63.1314
63.1315
63.1319
63.1320
63.1325-63.1332
63.1335
2060-0330
2060-0266
2060-0222
2060-0222
2060-0264
2060-0282
2060-0282
2060-0282
2060-0282
2060-0282
2060-0282
2060-0282
2060-0282
2060-0253
2060-0234
2060-0327
2060-0283
2060-0268
2060-0325
2060-0325
2060-0273
2060-0290
2060-0296
2060-0289
2060-0340
2060-0340
2060-0326
2060-0341
2060-0330
2060-0330
2060-0324
2060-0335
2060-0351
2060-0351
2060-0351
2060-0351
2060-0351
2060-0351
2060-0351
40 CFR citation
OMB control
No.
Chemical Accident Prevention Provisions
68.120(a), (e), and (g)
2050-0127
State Operating Permit Programs
Federal Operating Permit Programs
71.5
71.6(a
71.7
71.9(e)-(j)
71.24-71.26
2060-0336
2060-0336
2060-0336
2060-0336
2060-0276
Permits Regulation
72.7-72.10 ...
72.20-72.25
72.30-72.33
72.40-72.44
72.50-72.51
72.60-72.69
72.70-72.74
72.80-72.85
72.90-72.96
2060-0258
2060-0258
2060-0258
2060-0258
2060-0258
2060-0258
2060-0258
2060-0258
2060-0258
Allowance System
73.10-73.13
73 16
73.18-73.21
73.30-73.38
73 50-73 53
73.70-73.77
73 80-73 86
7390
2060-0261
2060-0261
2060-0261
2060-0258
2060-0258
2060-0221
2060-0258
2060-0258
Sulfur Dioxide Opt-ins
74.12
74.14
74.16
74.18
74.20
74.22
74.24-74.25
74.41
74.43-74.44
74.46-74.47
74.60-74.64
2060-0258
2060-0258
2060-0258
2060-0258
2060-0258
2060-0258
2060-0258
2060-0258
2060-0258
2060-0258
2060-0258
Continuous Emission Monitoring
75.4-75.5 2060-0258
75.10-75.18 2060-0258
75.20-75.24 2060-0258
75.30-75.34 2060-0258
75.40-75.48 2060-0258
75.50-75.52 2060-0258
75.53-75.56 2060-0258
75.60-75.67 2060-0258
Nitrogen Oxides Emission Reduction Program
76.8-76.15 2060-0258
Excess Emissions
77.3-77.6 2060-0258
-------
§9.1
40 CFR citation
OMB control
No.
Appeal Procedures for Acid Rain Program
78.1-78.20
2060-0258
Registration of Fuels and Fuel Additives
79.10-79.11 2060-0150
79.20-79.21 2060-0150
79.31-79.33 2060-0150
79.51 (a), (c), (d), (g), (h) 2060-0150
79.52 2060-0150
79.57(a)(5) 2060-0150
79.57(f)(5) 2060-0150
79.58(e) 2060-0150
79.59(b)-(d) 2060-0150
79.60 2060-0150
79.61(e) 2060-0150
79.62-79.68 2060-0297
Regulation of Fuels and Fuel Additives
80.20 2060-0066
80.25 2060-0066
80.27 2060-0178
80.29(c) 2060-0308
80.141 (c)-(f) 2060-0275
80.157 2060-0275
80.158 2060-0275
80.160 2060-0275
80.161 2060-0275
80.162 2060-0275
80.163(d)(3) 2060-0275
80.164 2060-0275
80.165 2060-0275
80.166 2060-0275
80.167(d) 2060-0275
80.170 2060-0275
80.171 2060-0275
80.173 2060-0275
Protection of Stratospheric Ozone
82.9-82.13 2060-0170
82.21 2060-0170
82.36 2060-0247
82.38 2060-0247
82.40 2060-0247
82.42 2060-0247
82.122 2060-0259
82.156 2060-0256
82.160-82.162 2060-0256
82.164 2060-0256
82.166 2060-0256
82.176(a) 2060-0226
82.176(c)(3) 2060-0226
82.178 2060-0226
82.180 2060-0350
82.180(a)(5) 2060-0226
82.180(b)(3) 2060-0226
82.184(c) 2060-0226
82.184(6) 2060-0226
Control of Air Pollution From Motor Vehicles and Motor
Vehicle Engines
85.503 2060-0104
85.505 2060-0104
85.1503-85.1507 2060-0095
85.1509-85.1510 2060-0095
85.1511(b)-(d), (f) 2060-0095
85.1511(b)(3) 2060-0007
40 CFR citation
85.1512
85.1514-85.1515
85 1 703
85.1705-85.1706
85 1901-85 1909
85 21 1 2-85 21 23
85.2114
852115
OMB control
No.
2060-0095
2060-0095
2060-01 24
2060-0007
2060-0048
2060-0065
2060-0016
2060-001 6
Control of Air Pollution From New and In-Use Motor Ve-
hicles and New and In-Use Motor Vehicle Engines:
Certification and Test Procedures
86.079-31-86.079-33 2060-0104
86.079-36 2060-0104
86.079-39 2060-0104
86.080-12 2060-0104
86.082-34 2060-0104
86.085-13 2060-0104
86.085-37 2060-0104
86.087-38 2060-0104
86.090-14 2060-0104
86.090-21 2060-0104
86.090-25 2060-0104
86.090-26 2060-0104
86.090-27 2060-0104
86.091-7 2060-0104
86.091-15 2060-0104
86.091-21 2060-0104
86.091-23 2060-0104
86.091-28 2060-0104
86.091-30 2060-0104
86.092-14 2060-0104
86.092-15 2060-0104
86.092-23 2060-0104
86.092-24 2060-0104
86.092-26 2060-0104
86.092-35 2060-0104
86.094-7-86.094-9 2060-0104
86.094-15-86.094-16 2060-0104
86.094-17 2060-0104
86.094-18 2060-0104
86.094-21 2060-0104
86.094-23 2060-0104
86.094-24(a)(3)(iii) 2060-0314
86.094-25 2060-0104
86.094-30 2060-0104
86.094-35 2060-0104
86.095-14 2060-0104
86.095-23 2060-0104
86.095-24 2060-0104
86.095-26 2060-0104
86.095-30 2060-0104
86.095-35 2060-0104
86.094-38 2060-0104
86.096-7 2060-0104
86.096-8 2060-0104
86.096-9 2060-0104
86.096-10 2060-0104
86.096-14 2060-0104
86.096-21 2060-0104
86.096-23 2060-0104
86.096-24 2060-0104
86.096-26 2060-0104
86.096-30 2060-0104
86.096-35 2060-0104
86.097-9 2060-0104
86.098-23 2060-0104
86.098-28 2060-0104
86.099-8 2060-0104
86.099-9 2060-0104
-------
§9.1
40 CFR citation
OMB control
No.
40 CFR citation
OMB control
No.
86.099-10 2060-0104
86.111-94 2060-0104
86.113-82 2060-0104
86.113-87 2060-0104
86.113-90 2060-0104
86.113-91 2060-0104
86.113-94 2060-0104
86.135-82 2060-0104
86.135-90 2060-0104
86.135-94 2060-0104
86.142-90 2060-0104
86.144-90 2060-0104
86.144-94 2060-0104
86.150-98 2060-0104
86.336-79 2060-0104
86.337-79 2060-0104
86.412-78 2060-0104
86.414-78 2060-0104
86.415-78 2060-0104
86.416-80 2060-0104
86.421-78 2060-0104
86.423-78 2060-0104
86.427-78 2060-0104
86.428-80 2060-0104
86.429-78 2060-0104
86.431-78 2060-0104
86.432-78 2060-0104
86.434-78 2060-0104
86.435-78 2060-0104
86.436-78 2060-0104
86.437-78 2060-0104
86.438-78 2060-0104
86.439-78 2060-0104
86.440-78 2060-0104
86.513-94 2060-0104
86.537-90 2060-0104
86.542-90 2060-0104
86.603-88 2060-0064
86.604-84 2060-0064
86.605-88 2060-0064
86.606-84 2060-0064
86.607-84 2060-0064
86.608-88 2060-0064
86.608-90 2060-0064
86.608-96 2060-0104
86.609-84 2060-0064
86.609-96 2060-0104
86.612-84 2060-0064
86.614-84 2060-0064
86.615-84 2060-0064
86.709-94 2060-0104
86.709-99 2060-0104
86.884-5 2060-0104
86.884-7 2060-0104
86.884-9 2060-0104
86.884-10 2060-0104
86.884-12 2060-0104
86.884-13 2060-0104
86.1003-90 2060-0064
86.1004-84 2060-0064
86.1005-90 2060-0064
86.1006-84 2060-0064
86.1007-84 2060-0064
86.1008-90 2060-0064
86.1008-96 2060-0104
86.1009-84 2060-0064
86.1009-96 2060-0104
86.1012-84 2060-0064
86.1014-84 2060-0064
86.1015-87 2060-0064
86.1106-87 2060-0132
86.1108-87 2060-0132
86.1110-87 2060-0132
86.1111-87 2060-0104
86.1112-87-86.1115-87 2060-0132
86.1213-85 2060-0104
86.1213-87 2060-0104
86.1242-85 2060-0104
86.1242-90 2060-0104
86.1308-84 2060-0104
86.1310-90 2060-0104
86.1311-94 2060-0104
86.1313-84 2060-0104
86.1313-87 2060-0104
86.1313-90 2060-0104
86.1313-91 2060-0104
86.1313-94 2060-0104
86.1314-84 2060-0104
86.1316-84 2060-0104
86.1316-90 2060-0104
86.1319-84 2060-0104
86.1319-90 2060-0104
86.1321-84 2060-0104
86.1321-90 2060-0104
86.1323-84 2060-0104
86.1327-84 2060-0104
86.1327-88 2060-0104
86.1327-90 2060-0104
86.1332-84 2060-0104
86.1332-90 2060-0104
86.1334-84 2060-0104
86.1335-90 2060-0104
86.1336-84 2060-0104
86.1340-84 2060-0104
86.1340-90 2060-0104
86.1341-90 2060-0104
86.1342-90 2060-0104
86.1344-94 2060-0104
86.1413 2060-0104
86.1427 2060-0104
86.1432 2060-0104
86.1434 2060-0104
86.1437 2060-0104
86.1442 2060-0104
86.1542-84 2060-0104
86.1544-84 2060-0104
86.2500 2060-0104
Clean-Fuel Vehicles
88.104-94 (a), (c), (e), (f), (g), (h), (i), (j), M
88.105-94
88.204-94(b)(1)
88.204-94JC)
88.305-94
88.306-94(a), (b) introductory text
88.306-94(b)(1)
88.306-94(b)(2)
88.306-94(b)(4)
88.306-94(c)
88.306-94(f)
2060-0104
2060-0104
2060-0314
2060-0314
2060-0104
2060-0104
2060-0314
2060-0314
2060-0314
2060-0314
2060-0314
Control of Emissions From New and In-Use Nonroad
Engines
89.1
89.2
89.114-96-89.120-96
89.122-96-89.127-96
89.129-96
89.203-96-89.207-96
89.209-96-89.211-96
2060-0124
2060-0124
2060-0287
2060-0287
2060-0287
2060-0287
2060-0287
-------
§9.1
40 CFR citation OMB^control
89.304-96-89.331-96 2060-0287
89.404-96-89.424-96 2060-0287
89.505-89.905 2060-0064
89 51 1 2060-0064
89 51 2 2060-0064
89.603-89.605 2060-0095
89.607-89.610 2060-0095
2060-0095
89.612 2060-0095
89 801 2060-0048
89.803 2060-0048
89 903 2060-0048
89 905 2060-0007
89.906 2060-0007
Control of Emissions From New and In-use Nonroad
90 1 07-90 1 08 2060-0338
90 1 1 3 2060-0338
90 1 1 5-90 1 24 2060-0338
90 1 26 2060-0338
90.304-90.329 2060-0338
90 404 90 427 2060-0338
90.505-90.509 2060-0295
90.604 2060-0294
90.611-90.613 2060-0294
90 800 2060-0048
90.802-90.804 2060-0048
90 806 2060-0048
90.903 2060-0124
90.905-90.906 2060-0007
Determining Conformity of Federal Actions to State or
Federal Implementation Plans
93 1 50-93 1 60 2060-0279
Mandatory Patent Licenses
95 2 2060-0307
Oil Pollution Prevention
1121-1127 2050-0021
Oil Pollution Prevention; Non-Transportation-Related
Onshore Facilities
112.20 2050-0135
Designation, Reportable Quantities, and Notification for
116.4 2050-0046
117.3 2050-0046
117.21 2050-0046
Pollutant Discharge Elimination System
1 22 21 (f) (I) 2040-0086
2040-0170
1 22 21 (j) (4) 2040-01 50
1 22 21 (m)-(p) 2040-0068
122.26(c), (d) 2040-0086
122.41 (h) 2040-0068,
40 CFR citation OMB^control
122.41 (j) 2040-0009,
2040-0110,
2040-0170
122.41(1) 2040-0110,
2040-0068,
2040-0170
122.42(c) 2040-0086
1 22 42(a) (b) (I) 2040-0068
2040-0170
122.44(g), (i) 2040-0004,
2040-0170
122.44(r) 2040-0180
122.45(b) 2040-0004,
2040-0110
122.45(b)(4) 2040-0068
1 22 47(a) 2040 01 1 0
2040-0170
1 22 47(b) 2040-01 1 0
2040-0170
1 22 48 2040-0004
2040-0170
122.62(a) 2040-0068,
2040-0170
1 22 63 2040-0068
2040-0170
State Permit Requirements
123.21-123.24 2040-0057,
2040-0170
123.25 2040-0004,
2040-0110,
2040-0170,
123.26-123.29 2040-0057,
2040-0170
2040-0170
2040-0170,
1 23 45 2040-0057
123.62 2040-0057,
123.63 2040-0057,
2040-0170,
2040-0180
2040-0170
Procedures for Decisionmaking
124.5 2040-0068
124.31 2050-0149
124.33 2050-0149
Criteria and Standards for the National Pollutant
Discharge Elimination System
125.59-125.67, and Appendix A and B 2040-0088
W t Q I't d M
y 9 9
1306 13010 2040-0071
130.15 2040-0071
-------
§9.1
40 CFR citation
OMB control
No.
40 CFR citation
OMB control
No.
Water Quality Standards Regulation
144.70
2040-0042
131.1 2040-0180
131.5 2040-0180
131.6-131.8 2040-0049
131 21 2040-0049
131 22 2040-0049
Water Quality Guidance for the Great Lakes System
132.1 2040-0180
1 32 2 2040-01 80
1 32 3 2040-01 80
1 32 5 2040-01 80
Part 132 Appendix B 2040-0180
Part 132, Appendix C 2040-0180
Part 132 Appendix E 2040-0180
141.2 2040-0090
141.11-141.15 2040-0090
141.25-141.30 2040-0090
141.33-141.35 2040-0090
141 41-141 43 2040-0090
141.50-141.52 2040-0090
141.70-141.75 2040-0090
141.80-141.91 2040-0090
141 100 2040-0090
141.110-141.111 2040-0090
141 140-141 144 2040-0183
National Primary Drinking Water Regulations
Underground Injection Control Program: Criteria and
Standards
146.10 2040-0042
146.12-146.15 2040-0042
1 46 22-1 46 25 2040-0042
146.32-146.35 2040-0042
1 46 52 2040-0042
146.64 2040-0042
146.66-146.73 2040-0042
State Underground Injection Control Programs
147.104 2040-0042
1 47 304-1 47 305 2040-0042
147.504 2040-0042
1 47 754 2040-0042
147.904 2040-0042
147.1154 2040-0042
1 47 1 354-1 47 1 355 2040-0042
147.1454 2040-0042
1 47 1 654 2040-0042
147.1954 2040-0042
1 47 21 03-1 47 21 04 2040-0042
1 47 21 54 2040-0042
147.2402 2040-0042
147.2905 2040-0042
147.2912-147.2913 2040-0042
1472915 2040-0042
147.2918 2040-0042
147.2920-147.2926 2040-0042
147.2929 2040-0042
147.3002-147.3003 2040-0042
147.3006-147.3007 2040-0042
147.3011 2040-0042
147.3014-147.3016 2040-0042
147.3101 2040-0042
147.3104-147.3105 2040-0042
147.3107-147.3109 2040-0042
Hazardous Waste Injection Restrictions
148.5 2040-0042
148.20-148.23 2040-0042
Implementation
Pesticide Registration and Classification Procedures
142.2-142.3
142.10-142.15
142.16
142.17-142.24
142.56-142.57
142.60-142.61
142.62
142.63-142.64
142.70-142.78
142.81-142.81
2040-0090
2040-0090
2060-0090
2040-0090
2040-0090
2040-0090
2040-0090
2040-0090
2040-0090
2040-0090
Underground Injection Control Program
144.8
144.12
144.14-144.15
144.23
144.25-144.28
144.31-144.33
144.38
144.41
144.51-144.55
144.62-144.66
2040-0042
2040-0042
2040-0042
2040-0042
2040-0042
2040-0042
2040-0042
2040-0042
2040-0042
2040-0042
152.46
152.50
152.80 ...
152.85 ...
152.98 ...
152.122
152.132
152.135
152.164
152.404
152.406
152.412
152.414
2070-0060
2070-0024,
2070-0040,
2070-0060
2070-0040,
2070-0060
2070-0040,
2070-0060
2070-0060
2070-0060
2070-0044
2070-0060
2070-0060
2070-0040,
2070-0060
2070-0040,
2070-0060
2070-0040,
2070-0060
2070-0040,
2070-0060
-------
§9.1
40 CFR citation OMBNControl
Registration Standards
1 55 30 2070-0057
Labeling Requirements for Pesticides and Devices
156.36 2070-0052
156.206 2070-0060
1 56 208 2070-0060
1 56 21 0 2070-0060
156.212 2070-0060
Packaging Requirements for Pesticides and Devices
157.22 2070-0052
1 57 24 2070-0052
1 57 34 2070-0052
1 57 36 2070-0052
Data Requirements for Registration
1 58 30 2070-0040
2070-0057,
2070-0060,
2070-0107
158.32 2070-0040,
2070-0053,
2070-0057,
2070-0060,
2070-0107
1 58 34 2070-0040
2070-0057,
2070-0060,
2070-0107
1 58 45 2070-0040
2070-0057,
2070-0060,
2070-0107
158.75 2070-0040,
2070-0057,
2070-0060,
2070-0107
158.101 2070-0040,
2070-0057,
2070 0060
2070-0107
2070-0057,
2070-0060,
2070-0107
1 58 1 60 2070-0040
2070-0057,
2070-0060,
2070-0107
2070-0057,
2070 0107
158.165 2070-0040,
2070-0057,
2070-0060,
1 58 1 67 2070-0040
2070-0057,
2070-0060,
2070-0107
1 58 1 70 2070-0040
2070-0057,
2070-0060,
2070-0107
40 CFR citation OMB^control
158.175 2070-0040,
2070-0057,
2070-0060,
2070-0107
158.180 2070-0040,
2070-0057,
2070-0060,
2070-0107
158.190 2070-0040,
2070-0057,
2070-0060,
2070-0107
158.240 2070-0057,
2070-0060,
2070-0107
158.290 2070-0057,
2070-0060,
2070-0107
1 58 390 2070-0057
2070-0107
1 58 440 2070-0057
2070-0060,
2070-0107
158.490 2070-0057,
2070-0060,
2070-0107
158.540 2070-0057,
2070-0107
1 58 590 2070-0057
2070-0060,
1 58 640 2070-0057
2070-0060,
2070-0107
158.690 2070-0057,
2070-0060,
2070-0107
158.740 2070-0057,
2070-0060,
2070-0107
Good Laboratory Practice Standards
Part 160 2070-0024,
2070-0032,
2070-0040,
2070-0055
2070-0057,
2070-0060,
2070-0107
State Registration of Pesticide Products
1 62 1 53 2070-0055
Certification of Usefulness of Pesticide Chemicals
1 63 4 2070-0060
2070-0024
163.5 2070-0060,
2070-0024
Exemption of Federal and State Agencies for Use of
Pesticides Under Emergency Conditions
166.20 2070-0032
-------
§9.1
40 CFR citation OMBNControl
1 66 32 2070-0032
1 66 43 2070-0032
1 66 50 2070-0032
Registration of Pesticide and Active Ingredient Produc-
ing Establishments, Submission of Pesticide Reports
Part 167 2070-0078
168.65 2070-0027
168.75 2070-0027
. f ... i- ...... i- ,j
Distribution
169.2 2070-0028
Part 170 2070-0148
Certification of Pesticide Applicators
171 7 2070-0029
171.9 2070-0029
171 10 2070-0029
171.11 2070-0029
Experimental Use Permits
172.4 2070-0040
1 72 8 2070-0040
Issuance of Food Additive Regulations
177.81 2070-0024
177.92 2070-0024
177.98 2070-0024
177.99 2070-0024
177.102 2070-0024
177105 2070-0024
177.110 2070-0024
Tolerances and Exemptions from Tolerances for Pes-
ticide Chemicals in or on Raw Agricultural Commod-
ities
1 80 7 2070-0024
1 80 8 2070-0024
1 80 9 2070-0024
180.31 2070-0024
1 80 32 2070-0024
1 80 33 2070-0024
404 State Program Regulations
233.10-233.12 2040-0168
233.21 2040-0168
233.30 2040-0168
233.50 2040-0168
233.52 2040-0168
233.61 2040-0140
40 CFR citation OMB^control
257.24 2050-0154
25725 2050-0154
25727 2050-0154
Criteria for Municipal Solid Waste Landfills
Part 258 2050-0122
258.20 2050-0122
258.23 2050-0122
258 28-258 29 2050-01 22
25851 2050-0122
258 53-258 55 2050-01 22
258 57 258 58 2050-01 22
258 60-258 61 2050-01 22
258.71-258.74 2050-0122
Hazardous Waste Management System: General
260 20-260 22 2050-0053
26023 2050-0145
260.31-260.33 2050-0053
Identification and Listing of Hazardous Waste
261.3 2050-0085
261 4 2050-0053
262 1 2 2050-0028
262.20 2050-0039
262.22-262.23 2050-0039
262 40(a) 2050-0039
262.40(b) 2050-0024
262.40(c) 2050-0035
262 41 2050-0024
262.42 2050-0039
262 43 2050-0035
262 44(a)-(b) 2050-0039
262.44(c) 2050-0035
262 53-262 57 2050-0035
262.60 2050-0035
StddAI'bltT rt
Waste
263.11 2050-0028
263 20 263 22 2050-0039
263.30 2050-0039
Standards for Owners and Operators of Hazardous Waste
Treatment, Storage, and Disposal Facilities
264.11 2050-0028
264.12 (a) 2050-0120
264.13 2050-0120,
2050-0009
264.14 2050-0009
264.15 2050-0120,
2050-0009
264.16 2050-0120,
2050-0009
264.17 2050-0120
264.18 2050-0009
264.19 2050-0009
-------
§9.1
40 CFR citation
264.32
264.35
264.37
264.51
264.52
264.53
264.54
264.56
264.71
264.72
264.73
264.74
264.75
264.76
264.90
264.96
264.97 (g)
264.97 (h)
264.97 (j)
264.98 (c), (am, (g)(5), (g)(6)
264.98 (g)(4), (h)
264.99 (c), (g), (h)(1), (i)(1), (i)(2)
264.99 (h)(2), (i)(3), (j)
264.100 (e), (f), (g)
264.100 (h)
264.101
264.112 (a), (b), (c)
264.112 (d)
264.113 (a), (b), (d)
264.113(6)
264.115
264.116
264.118
264.119 (a), (b)
264.119(c)
264.120
264.142(3)
264.142 (b), (c), (d)
264.143
264.144 (a)
264.144 (b), (c), (d)
264.145
264.147 (a)(7), (b)(7), (f),(g)
264.147 (a)(1), (b)(1), (c), (f), (g), (h), (i), (j)
264.148
264.149
264.190
264.191
264.192 (a)
264.193 (c), (d), (e), (g), (h)
264.193 (i)
264.196
264.197 (b)
264.197 (c)
264.221
264.222 (a)
264.222 (b)
264.223 (a)
264.223 (b), (c)
264.226 (c)
264.226 (d)
264.227
264.231
264.251
264.252(3)
264.252 (b)
264.253 (a)
264.253 (b), (c)
OMB control
No.
2050-0009
2050-0009
2050-0120
2050-0009
2050-0009
2050-0120
2050-0120
2050-0120
2050-0039
2050-0039
2050-0120
2050-0120
2050-0024
2050-0039
2050-0009
2050-0120
2050-0120
2050-0009
2050-0120
2050-0033
2050-0009
2050-0033
2050-0009
2050-0033
2050-0009
2050-0120
2050-0009
2050-0120
2050-0120
2050-0050
2050-0120
2050-0120
2050-0009
2050-0120
2050-0009
2050-0120
2050-0009
2050-0120
2050-0120
2050-0009
2050-0120
2050-0120
2050-0120
2050-0009
2050-0120
2050-0009
2050-0050
2050-0050
2050-0009
2050-0009
2050-0050
2050-0050
2050-0050
2050-0009
2050-0009
2050-0009
2050-0050
2050-0009
2050-0050
2050-0050,
2050-0009
2050-0050
2050-0050
2050-0009
2050-0009
2050-0009
2050-0050
2050-0009
2050-0050
40 CFR citation
264.254
264.259
264.271
264.272
264.276
264.278 (a)-(f), (h)
264.278 (g)
264.280
264.283
264.301
264.302(3)
264.302 (b)
264.303 (a)
264.303 (b)
264.304 (3)
264.304 (b), (c)
264.314
264.317
264.340
264.343
264.344
264.347
264.552
264.570
264.571
264.573
264.574
264.575
264.603
264.1033 (3)
264.1033 (j)
264.1034
264.1035
264.1036
264.1061
264.1062
264.1063
264.1064
264.1065
264.1089
264.1090
264.1100
264.1101
Interim Status Standards for Owners and
Hazardous Waste Treatment, Storage,
Facilities
265.11
265.12(3)
265.13
265.15
265.16
265.19
265.37
265.51
265.52
265.53
265.54
265.56
265.71
265.72
265.73
265.75
265.76
265.90
265.92
265.93
OMB control
No.
2050-0050
2050-0009
2050-0009
2050-0009
2050-0050,
2050-0009
2050-0050
2050-0050,
2050-0009
2050-0050
2050-0009
2050-0009
2050-0009
2050-0050
2050-0009
2050-0050
2050-0009
2050-0050
2050-0050
2050-0009
2050-0009
2050-0050
2050-0009
2050-0050
2050-0009
2050-0050
2050-0050
2050-0050
2050-0050
2050-0009
2050-0050
2050-0009
2050-0050
2050-0050
2050-0050
2050-0050
2050-0050
2050-0050
2050-0050
2050-0050,
2050-0009
2050-0050
2060-0318
2060-0318
2050-0050
2050-0050
Operators of
and Disposal
2050-0028
2050-0120
2050-0120
2050-0120
2050-0120
2050-0120
2050-0120
2050-0120
2050-0120
2050-0120
2050-0120
2050-0120
2050-0039
2050-0039
2050-0120
2050-0024
2050-0039
2050-0033
2050-0033
2050-0033
10
-------
§9.1
40 CFR citation
265.94
265.112
265.113 (a), (b), (d)
265.115
265.116
265.118
265.119
265.120
265.142
265.143
265.144
265.145
265.147
265.148
265.149
265.150
265.190
265.191
265.192
265.193
265.195
265.196
265.197 (b)
265.197 (c)
265.221
265.222
265.223
265.225
265.226
265.229
265.254
265.255
265.259
265.260
265.273
265.276
265.278
265.280
265.301
265.302
265.303
265.304
265.314
265.340
265.352
265.383
265.404
265.440
265.441
265.443
265.444
265.445
265.1033
265.1034
265.1035
265.1061
265.1062
265.1063
2651064
265.1090
265.1100
265.1101
OMB control
No.
2050-0033
2050-0120
2050-0120
2050-0120
2050-0120
2050-0120
2050-0120
2050-0120
2050-0120
2050-0120
2050-0120
2050-0120
2050-0120
2050-0120
2050-0120
2050-0120
2050-0035,
2050-0050
2050-0035,
2050-0050
2050-0035,
2050-0050
2050-0035,
2050-0120
2050-0035,
2050-0050
2050-0050
2050-0120
2050-0050
2050-0050
2050-0050
2050-0050
2050-0050
2050-0050
2050-0050
2050-0050
2050-0050
2050-0050
2050-0120
2050-0050
2050-0050
2050-0050
2050-0050
2050-0050
2050-0050
2050-0050
2050-0050
2050-0050
2050-0050
2050-0050
2050-0050
2050-0050
2050-0050
2050-0050
2050-0050
2050-0120
2050-0050
2050-0050
2050-0050
2050-0050
2050-0050
2050-0050
2050-0050
2060-0318
2050-0050
2050-0050
40 CFR citation
Standards for the Management of Specific
Wastes and Specific Types of Hazardous
agement Facilities
266.70 (b)
266.70 (c)
266.80
266.100
266.102
266.103
266.104
266.106
266.107
266.108
266.109
266.111
266.112
Appendix IX
Land Disposal Restrictions
268.4-268.5
268.6
268.7
268.9
268.42
268.44
OMB control
No.
Hazardous
Waste Man-
2050-0028
2050-0050
2050-0028
2050-0073
2050-0073
2050-0073
2050-0073
2050-0073
2050-0073
2050-0073
2050-0073
2050-0073
2050-0073
2050-0073
2050-0085
2050-0062
2050-0085
2050-0085
2050-0085
2050-0085
EPA Administered Permit Programs: The Hazardous
Waste Permit Program
270.1
270.10
270.11
270.13
270.14
270.14 (b)(21)
270.15
270.16
270.17
270.18
270.19
270.20
270.21
270.22
270.23
270.24
270.25
270.26
270.30
270.33
270.40
270.41
270.42
270.51
270.62
270.63
270.65
270.66
27072
27073
2050-0028,
2050-0034,
2050-0009
2050-0009
2050-0034
2050-0034
2050-0009
2050-0062,
2050-0085
2050-0009
2050-0009
2050-0009
2050-0009
2050-0009
2050-0009
2050-0009
2050-0073
2050-0009
2050-0009
2050-0009
2050-0115
2050-0120
2050-0009
2050-0009
2050-0009
2050-0009
2050-0009
2050-0009,
2050-0009
2050-0009
2050-0073,
2050-01 49
2050-0034
2050-0009
Requirements for Authorization of State Hazardous Waste
Programs
11
-------
§9.1
40 CFR citation
OMB control
No.
40 CFR citation
OMB control
No.
271.20-271.21
271.23
2050-0041
2050-0041
Standards for Universal Waste Management
273.14 2050-0145
273.15 2050-0145
273.18 2050-0145
273.32 2050-0145
273.34 2050-0145
273.35 2050-0145
273.38 2050-0145
273.39 2050-0145
273.61 2050-0145
273.62 2050-0145
273.80 2050-0145
Standards for Management of Used Oil
279.10-279.11 2050-0124
279.42 2050-0028,
2050-0124
279.43-279.44 2050-0124
279.46 2050-0050
279.51 2050-0028
279.52-279.55 2050-0124
279.56 2050-0050
279.57 2050-0050,
2050-0124
279.62 2050-0028
279.63 2050-0124
279.65-279.66 2050-0050
279.72 2050-0050
279.73 2050-0028
279.74-279.75 2050-0050
279.82 2050-0124
Technical Standards and Corrective Action Require-
ments for Owners and Operators of Underground
Storage Tanks (USTs)
280.11 (a) 2050-0068
280.20(a)-(b) 2050-0068
280.20(e) 2050-0068
280.22(a)-(f) 2050-0068
280.22(g) 2050-0068
280.31 2050-0068
280.33(f) 2050-0068
280.34(3) 2050-0068
280.34(b) 2050-0068
280.34(c) 2050-0068
280.40 2050-0068
280.43 2050-0068
280.44 2050-0068
280.45 2050-0068
280.50 2050-0068
280.53 2050-0068
280.61 2050-0068
280.62 2050-0068
280.63 2050-0068
280.64 2050-0068
280.65 2050-0068
280.66(a) 2050-0068
280.66(c) 2050-0068
280.66(d) 2050-0068
280.67 2050-0068
280.71 (a) 2050-0068
280.72(a) 2050-0068
280.74 2050-0068
280.95 2050-0068
280.96 2050-0068
280.97 2050-0068
280.98 2050-0068
280.99 2050-0068
280.100 2050-0068
280.101 2050-0068
280.102 2050-0068
280.103 2050-0068
280.104 2050-0068
280.105 2050-0068
280.106 2050-0068
280.107 2050-0068
280.108 2050-0068
280.109(3) 2050-0068
280.109(b) 2050-0068
280.110 2050-0068
280.111 2050-0068
280.111(b)(11) 2050-0068
280.114(a)-(d) 2050-0068
280.114(6) 2050-0068
Approval of State Underground Storage Tank Programs
281.120(3) 2050-0068
281.120(g) 2050-0068
281.121 2050-0068
281.122 2050-0068
281.124 2050-0068
281.125 2050-0068
281.140 2050-0068
281.143(3) 2050-0068
281.150 2050-0068
281.152 2050-0068
281.161 2050-0068
National Oil and Hazardous Substances Pollution
Contingency Plan
300.405 2050-0046
300.425 2050-0095
300.430 2050-0096
300.435 2050-0096
300.920 2050-0141
Part 300, Appendix A 2050-0095
Designation, reportable quantities, and notification
302.4 2050-0046
302.6 2050-0046
302.8 2050-0086
Hazardous Substances Superfund; Response Claims
Procedures
307.11-307.14 2050-0106
307.21-307.23 2050-0106
307.30-307.32 2050-0106
Reimbursement to Local Governments for Emergency
Response to Hazardous Substance Releases
310.05 2050-0077
310.10-310.12 2050-0077
310.20 2050-0077
310.30 2050-0077
310.40 2050-0077
310.50 2050-0077
310.60 2050-0077
310.70 2050-0077
310.80 2050-0077
310.90 2050-0077
P3rt310, Appendix II 2050-0077
12
-------
§9.1
40 CFR citation
OMB control
No.
40 CFR citation
OMB control
No.
Worker Protection Standards for Hazardous Waste
Operations and Emergency Response
311.1-311.2
2050-0105
Trade Secrecy Claims for Emergency Planning and
Community Right-to-Know; Health Professionals
350.5-350.16 2050-0078
350.27 2050-0078
350.40 2050-0078
Emergency planning and notification
Part 355, Appendix A, Appendix B 2050-0046
Toxic Chemical Release Reporting: Community Right-to-
Know
Part 372
Part 372, subpart A
2070-0093
2070-0093,
2070-0143
2070-0093,
2070-0143
372.25 2070-0093
372.27 2070-0143
372.30 2070-0093,
2070-0143
372.38 2070-0093,
2070-0143
Part 372, subpart C 2070-0093,
2070-0143
Part 372, subpart D 2070-0093,
2070-0143
372.85 2070-0093
372.95 2070-0143
General Pretreatment Regulations for Existing and New
Sources of Pollution
403.5(b) 2040-0009
403.6-403.7 2040-0009
403.8(a)-(e) 2040-0009
403.8(f) 2040-0009
403.9-403.10 2040-0009
403.12(b)-(g) 2040-0009
403.12 (h), (i) 2040-0009
403.12 (j), (k), (I), (o) 2040-0009
403.12 (m), (p) 2040-0009
403.13 2040-0009
403.15 2040-0009
403.17^103.18 2040-0009,
2040-0170
Steam Electric Generating Point Source Category
423.12^123.13 2040-0033
423.15 2040-0033
Pulp, Paper, and Paperboard Point Source Category
430.14^130.17 2040-0033
430.24^130.27 2040-0033
430.54^130.57 2040-0033
430.64^130.67 2040-0033
430.74^130.77 2040-0033
430.84^130.87 2040-0033
430.94^130.97 2040-0033
430.104-430.107 2040-0033
430.114-430.117 2040-0033
430.134-430.137 2040-0033
430.144-430.147 2040-0033
430.154-430.157 2040-0033
430.164-430.167 2040-0033
430.174-430.177 2040-0033
430.184-430.187 2040-0033
430.194-430.197 2040-0033
430.204-430.207 2040-0033
430.214-430.217 2040-0033
430.224-430.227 2040-0033
430.234-430.237 2040-0033
430.244-430.247 2040-0033
430.254-430.257 2040-0033
430.264-430.267 2040-0033
The Builders' Paper and Board Mills Point Source
Category
431.14^131.17 2040-0033
Pharmaceutical Manufacturing Point Source Category
439.14^139.17 2040-0033
439.24^139.27 2040-0033
439.34^139.37 2040-0033
439.44^139.47 2040-0033
Coil Coating Point Source Category
Porcelain Enameling Point Source Category
466.03 2040-0033
Aluminum Forming Point Source Category
State Sludge Management Program Requirements
501.15(a) 2040-0086,
2040-0110
501.15(b) 2040-0004,
2040-0068,
2040-0110
501.15(c) 2040-0068
501.16 2040-0057
501.21 2040-0057
Standards for the Use or Disposal of Sewage Sludge
503.17-503.18 2040-0157
503.27-503.28 2040-0157
503.47-503.48 2040-0157
Fuel Economy of Motor Vehicles
600.006-86 2060-0104
600.007-80 2060-0104
600.010-86 2060-0104
600.113-88 2060-0104
600.113-93 2060-0104
600.206-86 2060-0104
600.207-86 2060-0104
600.209-85 2060-0104
600.306-86 2060-0104
600.307-86 2060-0104
600.311-86 2060-0104
600.312-86 2060-0104
600.313-86 2060-0104
600.314-86 2060-0104
600.507-86 2060-0104
600.509-86 2060-0104
13
-------
§9.1
40 CFR citation OMBNControl
600.510-86
600.512-86
2060-0104
2060-0104
Toxic Substances Control Act: General
700.45
2070-0012,
2070-0038
Reporting and Recordkeeping Requirements
704.5
704.11
70425
704.33
70443
70445
704.95
704 1 02
704.104
704.175
707.65
707.67
70772
Part 710
712.5
7127
71220
712.28
71230
716.5
716.20
716.25
716 30
716.35
716 40
71645
716.50
716 60
716.65
716.105
716 120
Chemical Imports and Exports
Inventory Reporting Regulations
Chemical Information Rules
Health and Safety Data Reporting
2010-0019,
2070-0067
2010-0019,
2070-0067
2070-0067
2070-0067
2070-0067
2070-0067
2070-0067
2070-0067
2070-0067
2070-0067
2070-0030
2070-0030
2070-0030
2070-0070
2070-0054
2070-0054
2070-0054
2070-0054
2070-0054
2070-0004
2070-0004
2070-0004
2070-0004
2070-0004
2070-0004
2070-0004
2070-0004
2070-0004
2070-0004
2070-0004
2070-0004
2070-0004
Records and Reports of Allegations That Chemical Sub-
stances Cause Significant Adverse Reactions to
Health or the Environment
7175
717.7
717.12
717 15
717.17
720.1
720.22
720.25
Premanufacture Notification
2070-0017
2070-0017
2070-0017
2070-0017
2070-0017
2070-0012
2070-0012
2070-0012
40 CFR citation
720.30
720.36
Part 720, subpartC
72075
720.78
720.85
720.87
72090
720.102
Significant New Uses of Chemical
Part 721, subpart A
721.72
721.125
721 160
721 170
721 185
721.225
721.267
721.275
721.285
721.320
721.323
721 325
721.336
721 370
721.390
721 400
721.415
721.430
721 445
721.460
721.470
721.484
721.490
721.505
721.520
721.530
721.536
721.540
721.550
721.562
721 575
721.600
721 639
721.642
721 646
721.650
721 700
721.715
721.750
721 757
721.775
721.805
721.825
721.875
721.925
OMB control
No.
2070-0012
2070-0012
2070-0012
2070-001 2
2070-0012
2070-0012
2070-0012
2070-001 2
2070-0012
Substances
2070-0012,
2070-0038
2070-0012,
2070-0038
2070-0012,
2070-0038
2070-001 2
2070-0038
2070-001 2
2070-0038
2070-001 2
2070-0038
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-001 2
2070-0012
2070-001 2
2070-0012
2070-001 2
2070-0012
2070-0012
2070-001 2
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-001 2
2070-0012
2070-001 2
2070-0012
2070-001 2
2070-0038
2070-001 2
2070-0012
2070-0012
2070-001 2
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
14
-------
§9.1
40 CFR citation
721.950
721.982
721.1000
721.1025
721.1050
721.1068
721.1075
721.1120
721.1150
721.1175
721.1187
721.1193
721.1210
721.1225
721.1240
721.1300
721.1325
721.1350
721.1372
721.1375
721.1425
721.1430
721.1435
721.1440
721.1450
721.1500
721.1525
721.1550
721.1555
721.1568
721.1575
721.1612
721.1625
721.1630
721.1637
721.1640
721.1643
721.1645
721.1650
721.1660
721.1675
721.1700
721.1725
721.1728
721.1732
721.1735
721.1737
721.1738
721.1740
721.1745
721.1750
721.1755
721.1765
721.1769
721.1775
721.1790
721.1800
721.1820
721.1825
721.1850
721.1875
721.1900
721.1920
721.1925
721.1950
721.2025
721.2050
721.2075
721.2084
721.2085
721.2086
OMB control
No.
2070-0012
2070-0012
2070-0012
2070-0038
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0038
2070-0038
2070-0038
2070-0038
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0038
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0038
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0038
2070-0012
2070-0012
40 CFR citation
721.2088
721.2089
721.2092
721.2095
721.2097
721.2120
721.2140
721.2170
721.2175
721.2250
721.2260
721.2270
721.2275
721.2287
721.2340
721.2355
721.2380
721.2410
721.2420
721.2475
721.2520
721.2527
721.2540
721.2560
721.2565
721.2575
721.2600
721.2625
721.2650
721.2675
721.2725
721.2750
721.2800
721.2815
721.2825
721.2840
721.2860
721.2880
721.2900
721.2920
721.2930
721.2940
721.2950
721.3000
721.3020
721.3028
721.3034
721.3040
721.3060
721.3063
721.3080
721.3100
721.3120
721.3140
721.3152
721.3160
721.3180
721.3200
721.3220
721.3248
721.3260
721.3320
721.3340
721.3350
721.3360
721.3364
721.3374
721.3380
721.3390
721.3420
721.3430
OMB control
No.
2070-0012
2070-0012
2070-0038
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0038
2070-0012
2070-0038
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0038
2070-0012
2070-0012
2070-0012
2070-0038
2070-0012
2070-0038
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0038
2070-0012
2070-0012
2070-0038
2070-0012
2070-0012
2070-0012
2070-0012
2070-0038
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0038
15
-------
§9.1
40 CFR citation
721.3435
721.3437
721.3440
721.3460
721.3480
721.3486
721.3500
721.3520
721.3560
721.3620
721.3625
721.3627
721.3628
721.3629
721.3640
721.3680
721.3700
721.3720
721.3740
721.3760
721.3764
721.3780
721.3790
721.3800
721.3815
721.3840
721.3860
721.3870
721.3880
721.3900
721.4000
721.4020
721.4040
721.4060
721.4080
721.4100
721.4110
721.4128
721.4133
721.4140
721.4155
721.4160
721.4180
721.4200
721.4215
721.4220
721.4240
721.4250
721.4255
721.4260
721.4270
721.4280
721.4300
721.4320
721.4340
721.4360
721.4380
721.4390
721.4400
721.4420
721.4460
721.4463
721.4466
721.4470
721.4473
721.4484
721.4480
721.4490
721.4494
721.4497
721.4500
OMB control
No.
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0038
2070-0012
2070-0012
2070-0012
2070-0012
2070-0038
2070-0038
2070-0038
2070-0038
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0038
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
40 CFR citation
721.4520
721.4550
721.4568
721.4585
721.4587
721.4590
721.4594
721.4600
721.4620
721.4640
721.4660
721.4663
721.4668
721.4680
721.4685
721.4700
721.4720
721.4740
721.4780
721.4790
721.4794
721.4800
721.4820
721.4840
721.4880
721.4925
721.5050
721.5075
721.5175
721.5192
721.5200
721.5225
721.5250
721.5275
721.5276
721.5278
721.5282
721.5285
721.5300
721.5310
721.5325
721.5330
721.5350
721.5375
721.5385
721.5400
721.5425
721.5450
721.5475
721.5500
721.5525
721.5540
721.5545
721.5550
721.5575
721.5600
721.5700
721.5705
721.5710
721.5740
721.5760
721.5763
721.5769
721.5780
721.5800
721.5820
721.5840
721.5860
721.5880
721.5900
721.5910
OMB control
No.
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0038
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0038
2070-0012
2070-0012
2070-0038
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0038
2070-0012
2070-0012
2070-0038
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
16
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§9.1
40 CFR citation
721.5915
721.5920
721.5930
721.5960
721.5970
721.5980
721.5990
721.6000
721.6020
721.6060
721.6070
721.6080
721.6085
721.6090
721.6097
721.6100
721.6110
721.6120
721.6140
721.6160
721.6180
721.6186
721.6200
721.6220
721.6440
721.6470
721.6500
721.6520
721.6540
721.6560
721.6580
721.6600
721.6620
721.6625
721.6640
721.6660
721.6680
721.6700
721.6720
721.6740
721.6760
721.6780
721.6820
721.6840
721.6880
721.6900
721.6920
721.6940
721.6960
721.6980
721.7000
721.7020
721.7040
721.7046
721.7080
721.7100
721.7140
721.7160
721.7180
721.7200
721.7210
721.7220
721.7240
721.7260
721.7280
721.7300
721.7320
721.7340
721.7360
721.7370
721.7400
OMB control
No.
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0038
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
40 CFR citation
721.7420
721.7440
721.7450
721.7460
721.7480
721.7500
721.7540
721.7560
721.7580
721.7600
721.7620
721.7655
721.7660
721.7680
721.7780
721.7710
721.7720
721.7700
721.7740
721.7760
721.7770
721.8075
721.8082
721.8090
721.8100
721.8155
721.8160
721.8170
721.8175
721.8225
721.8250
721.8265
721.8275
721.8290
721.8300
721.8325
721.8335
721.8350
721.8375
721.8400
721.8425
721.8450
721.8475
721.8500
721.8525
721.8550
721.8575
721.8600
721.8650
721.8654
721.8670
721.8673
721.8675
721.8700
721.8750
721.8775
721.8825
721.8850
721.8875
721.8900
721.8965
721.9000
721.9075
721.9100
721.9220
721.9240
721.9260
721.9280
721.9300
721.9320
721.9360
OMB control
No.
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
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2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
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2070-0012
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2070-0012
2070-0012
2070-0012
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2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0038
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
17
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§9.1
40 CFR citation
721.9400
721.9420
721.9460
721.9470
721.9480
721.9495
721.9500
721.9505
721.9507
721.9510
721.9520
721 9525
721.9530
721.9550
721.9570
721 9580
721.9620
721 9630
721 9650
721.9656
721.9658
721.9660
721.9665
721.9675
721.9680
721 9700
721 9720
721.9730
721 9740
721.9750
721.9780
721 9800
721.9820
721.9850
721 9870
721.9892
721.9900
721.9920
721.9925
721 9930
721.9940
721 9957
721.9970
721.9975
OMB control
No.
2070-0012
2070-0012
2070-0012
2070-0038
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0038
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0038
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0012
2070-0038
2070-0012
2070-0038
2070-0012
2070-0012
Premanufacture Notification Exemptions
723.50
723.175
723250(m)(1)
2070-0012
2070-0012
2070-0012
Lead-Based Paint Poisioning Prevention in Certain
Residential Structures
Part 745, subpart F
Part 745, subpart L
Part 745 subpart Q
Water Treatment Chemicals
Part 749, subpart D
2070-0151
2070-0155
2070-0155
2060-0193
2060-0193
Polychlorinated Biphenyls (PCBs) Manufacturing, Proc-
essing, Distribution in Commerce, and Use Prohibi-
tions
761 20
2070-0008,
9n7n_nrm
40 CFR citation OMB^control
761 30
761 60
761 65
761 80
761 93
761 93(a)(1)(iii)
761 93(b)
761.125
761.180
761 185
761.187
761 193
761 202
761 205
761.207
761.207(3)
761.208
761 209
761 210
761.211
761.215
761 218
Asbestos
Part 763, subpart E
Part 763, subpart G
Part 763, subpart I
Dibenzo-para-dioxin/Dibenzofurans
766.35(b)(2)
766.35(b)(3)
76635(c)(1)(i)
76635(c)(1)(ii)
766.35(c)(1)(iii)
766.35(d) Form
76638
2070-0003,
2070-0008,
2070-0021
2070-001 1
2070-0112
2070-001 1
2070-001 1
2070-0021
2070-0149
2070-0149
2070-0149
2070-0112
2070-0112
2070-0008
2070-0008
2070-0008
2070-0112
2070-0112
2070-0112
2050-0039
2070-0112
2070-0112
2070-0112
2070-0112
2070-0112
2070-0112
2070-0091
2070-0072
2070-0082
2070-0054
2070-0054
2070-0017
2070-0054
2070-0054
2070-0054
2070-0017
2070-0017
2070-0054
Procedures Governing Testing Consent Agreements and
Test Rules
7905
79042
79045
790.50
790.55
79060
79062
79068
790.80
790.82
790 85
79099
2070-0033
2070-0033
2070-0033
2070-0033
2070-0033
2070-0033
2070-0033
2070-0033
2070-0033
2070-0033
2070-0033
2070-0033
Good Laboratory Practice Standards
Part 792
2010-0019,
2070-0004,
2070-0017,
2070-0033,
2070-0054,
2070-0067
18
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§9.1
40 CFR citation
OMB control
No.
40 CFR citation
Provisional Test Guidelines
795.45 ...
795.232
2070-0067
2070-0033
Identification of Specific Chemical Substance and Mixture
Testing Requirements
799.1053
799.1250
799.1560
799.1575
799.1645
799.1700
799.2155
799.2325
799.2475
799.2500
799.2700
799.3300
799.4360
799.4440
799.5000
2070-0033
2070-0033
2070-0033
2070-0033
2070-0033
2070-0033
2070-0033
2070-0033
2070-0033
2070-0033
2070-0033
2070-0033
2070-0033
2070-0033
2070-0033
OMB control
No.
799.5025 ...
799.5050 ...
799.5055 ...
799.5075 ...
2070-0033
2070-0033
2070-0033
2070-0033
1 The ICRs referenced in this section of the table encom-
pass the applicable general provisions contained in 40 CFR
part 60, subpart A, which are not independent information col-
lection requirements.
2The ICRs referenced in this section of the table encom-
pass the applicable general provisions contained in 40 CFR
part 61, subpart A, which are not independent information col-
lection requirements.
3The ICRs referenced in this section of the table encom-
pass the applicable general provisions contained in 40 CFR
part 63, subpart A, which are not independent information col-
lection requirements.
[58 FR 27472, May 10, 1993]
EDITORIAL NOTE: For Federal Register citations affect-
ing § 9.1 see the List of CFR Sections Affected in the
Finding Aids section of this volume.
19
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PART 10—ADMINISTRATIVE CLAIMS
UNDER FEDERAL TORT CLAIMS ACT
Subpart A—General
Sec.
10.1 Scope of regulations.
Subpart B—Procedures
10.2 Administrative claim; when presented; place of fil-
ing.
10.3 Administrative claims; who may file.
10.4 Evidence to be submitted.
10.5 Investigation, examination, and determination of
claims.
10.6 Final denial of claim.
10.7 Payment of approved claim.
10.8 Release.
10.9 Penalties.
10.10 Limitation on Environmental Protection Agency's
authority.
10.11 Relationship to other agency regulations.
AUTHORITY: Sec. 1, 80 Stat. 306; 28 U.S.C. 2672; 28
CFR Part 14.
SOURCE: 38 FR 16868, June 27, 1973, unless otherwise
noted.
Subpart A—General
§ 10.1 Scope of regulations.
The regulations in this part apply only to claims
asserted under the Federal Tort Claims Act, as
amended, 28 U.S.C. 2671-2680, for money dam-
ages against the United States because of damage
to or loss of property or personal injury or death,
caused by the negligent or wrongful act or omis-
sion of any employee of the Environmental Pro-
tection Agency (EPA) while acting within the
scope of his/her employment.
[51 FR 25832, July 16, 1986]
Subpart B—Procedures
§ 10.2 Administrative claim: when pre-
sented; place of filing.
(a) For purpose of the regulations in this part,
a claim shall be deemed to have been presented
when the Environmental Protection Agency re-
ceives, at a place designated in paragraph (c) of
this section, an executed Standard Form 95 or
other written notification of an incident accom-
panied by a claim for money damages in a sum
certain for damage to or loss of property, for per-
sonal injury, or for death, alleged to have occurred
by reason of the incident. A claim which should
have been presented to EPA, but which was mis-
takenly addressed to or filed with another Federal
agency, shall be deemed to be presented to EPA
as of the date that the claim is received by EPA.
A claim mistakenly addressed to or filed with
EPA shall forthwith be transferred to the appro-
priate Federal agency, if ascertainable, or returned
to the claimant.
(b) A claim presented in compliance with para-
graph (a) of this section may be amended by the
claimant at any time prior to final action by the
Administrator, or his designee, or prior to the ex-
ercise of the claimant's option to bring suit under
28 U.S.C. 2675(a). Amendments shall be submit-
ted in writing and signed by the claimant or his
duly authorized agent or legal representative. Upon
the timely filing of an amendment to a pending
claim, EPA shall have 6 months in which to make
a final disposition of the claim as amended and
the claimant's option under 28 U.S.C. 2675(a)
shall not accrue until 6 months after the filing of
an amendment.
(c) Forms may be obtained and claims may be
filed with the EPA office having jurisdiction over
the employee involved in the accident or incident,
or with the EPA Claims Officer, Office of General
Counsel (LE-132G), 401 M Street SW., Washing-
ton, DC 20460.
[38 FR 16868, June 27, 1973, as amended at 51 FR
25832, July 16, 1986]
§ 10.3 Administrative claims; who may
file.
(a) A claim for injury to or loss of property
may be presented by the owner of the property in-
terest which is the subject of the claim, his duly
authorized agent, or his legal representative.
(b) A claim for personal injury may be pre-
sented by the injured person, his duly authorized
agent, or his legal representative.
(c) A claim based on death may be presented by
the executor or administrator of the decedent's es-
tate or by any other person legally entitled to as-
sert such a claim under applicable State law.
(d) A claim for loss wholly compensated by an
insurer with the rights of a subrogee may be pre-
sented by the insurer. A claim for loss partially
compensated by an insurer with the rights of a
subrogee may be presented by the insurer or the
insured individually as their respective interests
appear, or jointly. Whenever an insurer presents a
claim asserting the rights of a subrogee, he shall
present with his claim appropriate evidence that he
has the rights of a subrogee.
(e) A claim presented by an agent or legal rep-
resentative shall be presented in the name of the
claimant, be signed by the agent or legal rep-
resentative, show the title or legal capacity of the
person signing, and be accompanied by evidence
of his authority to present a claim on behalf of the
claimant as agent, executor, administrator, parent,
guardian, or other representative.
1
-------
§10.4
§ 10.4 Evidence to be submitted.
(a) Death. In support of a claim based on death,
the claimant may be required to submit the follow-
ing evidence or information:
(1) An authenticated death certificate or other
competent evidence showing cause of death, date
of death, and age of the decedent.
(2) Decedent's employment or occupation at
time of death, including his monthly or yearly sal-
ary or earnings (if any), and the duration of his
last employment or occupation.
(3) Full names, addresses, birth dates, kinship,
and marital status of the decedent's survivors, in-
cluding identification of those survivors who were
dependent for support upon the decedent at the
time of his death.
(4) Degree of support afforded by the decendent
to each survivor dependent upon him for support
at the time of his death.
(5) Decedent's general physical and mental con-
dition before death.
(6) Itemized bills for medical and burial ex-
penses incurred by reason of the incident causing
death, or itemized receipts of payments for such
expenses.
(7) If damages for pain and suffering prior to
death are claimed, a physician's detailed statement
specifying the injuries suffered, duration of pain
and suffering, any drugs administered for pain and
the decedent's physical condition in the interval
between injury and death.
(8) Any other evidence or information which
may have a bearing on either the responsibility of
the United States for the death or the damages
claimed.
(b) Personal Injury. In support of a claim for
personal injury, including pain and suffering, the
claimant may be required to submit the following
evidence or information:
(1) A written report by his attending physician
or dentist setting forth the nature and extent of the
injury, nature and extent of treatment, any degree
of temporary or permanent disability, the progno-
sis, period of hospitalization, and any diminished
earning capacity. In addition, the claimant may be
required to submit to a physical or mental exam-
ination by a physician employed or designated by
EPA. A copy of the report of the examining physi-
cian shall be made available to the claimant upon
the claimant's written request provided that the
claimant has, upon request, furnished the report re-
ferred to in the first sentence of this subparagraph
and has made or agrees in writing to make avail-
able to EPA any other physician's reports pre-
viously or thereafter made of the physical or men-
tal condition which is the subject matter of his
claim.
(2) Itemized bills for medical, dental, hospital
and related expenses incurred, or itemized receipts
of payment for such expenses.
(3) If the prognosis reveals the necessity for fu-
ture treatment, a statement of expected duration of
and expenses for such treatment.
(4) If a claim is made for loss of time from em-
ployment, a written statement from his employer
showing actual time lost from employment, wheth-
er he is a full or part-time employee, and wages
or salary actually lost.
(5) If a claim is made for loss of income and
the claimant is self-employed, documentary evi-
dence showing the amount of earnings actually
lost.
(6) Any other evidence or information which
may have a bearing on the responsibility of the
United States for either the personal injury or the
damages claimed.
(c) Property Damage. In support of a claim for
damage to or loss of property, real or personal, the
claimant may be required to submit the following
evidence or information:
(1) Proof of ownership.
(2) A detailed statement of the amount claimed
with respect to each item of property.
(3) An itemized receipt of payment for nec-
essary repairs or itemized written estimates of the
cost of such repairs.
(4) A statement listing date of purchase, pur-
chase price, market value of the property as of
date of damage, and salvage value, where repair is
not economical.
(5) Any other evidence or information which
may have a bearing on the responsibility of the
United States either for the injury to or loss of
property or for the damage claimed.
(d) Time limit. All evidence required to be sub-
mitted by this section shall be furnished by the
claimant within a reasonable time. Failure of a
claimant to furnish evidence necessary to a deter-
mination of his claim within three months after a
request therefor has been mailed to his last known
address may be deemed an abandonment of the
claim. The claim may be thereupon disallowed.
§ 10.5 Investigation, examination, and
determination of claims.
The EPA Claims Officer adjusts, determines,
compromises and settles all administrative tort
claims filed with EPA. In carrying out these func-
tions, the EPA Claims Officer makes such inves-
tigations as are necessary for a determination of
the validity of the claim. The decision of the EPA
Claims Officer is a final agency decision of pur-
poses of 28U.S.C. 2675.
[51 FR 25832, July 16, 1986]
-------
§10.11
§ 10.6 Final denial of claim.
(a) Final denial of an administrative claim shall
be in writing and sent to the claimant, his attor-
ney, or legal representative by certified or reg-
istered mail. The notification of final denial may
include a statement of the reasons for the denial
and shall include a statement that, if the claimant
is dissatisfied with EPA's action, he may file suit
in an appropriate U.S. District Court not later than
6 months after the date of mailing of the notifica-
tion.
(b) Prior to the commencement of suit and prior
to the expiration of the 6-month period after the
date of mailing by certified or registered mail of
notice of final denial of the claim as provided in
28 U.S.C. 2401(b), a claimant, his duly authorized
agent, or legal representative, may file a written
request with the EPA for reconsideration of a final
denial of a claim under paragraph (a) of this sec-
tion. Upon the timely filing of a request for recon-
sideration, EPA shall have 6 months from the date
of filing in which to make a final disposition of
the claim and the claimant's option under 28
U.S.C. 2675(a) to bring suit shall not accrue until
6 months after the filing of a request for reconsid-
eration. Final action on a request for reconsider-
ation shall be effected in accordance with the pro-
visions of paragraph (a) of this section.
§ 10.7 Payment of approved claim.
(a) Upon allowance of his claim, claimant or his
duly authorized agent shall sign the voucher for
payment, Standard Form 1145, before payment is
made.
(b) When the claimant is represented by an at-
torney, the voucher for payment (SF 1145) shall
designate both the claimant and his attorney as
"payees." The check shall be delivered to the at-
torney whose address shall appear on the voucher.
(c) No attorney shall charge fees in excess of 25
percent of a judgment or settlement after litigation,
or in excess of 20 percent of administrative settle-
ments (28 U.S.C. 2678).
§ 10.8 Release.
Acceptance by the claimant, his agent or legal
representative of any award, compromise or settle-
ment made hereunder, shall be final and conclu-
sive on the claimant, his agent or legal representa-
tive and any other person on whose behalf or for
whose benefit the claim has been presented, and
shall constitute a complete release of all claims
against either the United States or any employee
of the Government arising out of the same subject
matter.
§ 10.9 Penalties.
A person who files a false claim or makes a
false or fraudulent statement in a claim against the
United States may be liable to a fine of not more
than $10,000 or to imprisonment of not more than
5 years, or both (18 U.S.C. 287,1001), and, in ad-
dition, to a forfeiture of $2,000 and a penalty of
double the loss or damage sustained by the United
States (31 U.S.C. 3729).
[38 FR 16868, June 27, 1973, as amended at 51 FR
25832, July 16, 1986]
§10.10 Limitation on Environmental
Protection Agency's authority.
(a) An award, compromise or settlement of a
claim hereunder in excess of $25,000 shall be ef-
fected only with the prior written approval of the
Attorney General or his designee. For the purposes
of this paragraph, a principal claim and any deriv-
ative or subrogated claim shall be treated as a sin-
gle claim.
(b) An administrative claim may be adjusted,
determined, compromised or settled hereunder
only after consultation with the Department of Jus-
tice when, in the opinion of the Environmental
Protection Agency:
(1) A new precedent or a new point of law is
involved; or
(2) A question of policy is or may be involved;
or
(3) The United States is or may be entitled to
indemnity or contribution from a third party and
the Agency is unable to adjust the third party
claim; or
(4) The compromise of a particular claim, as a
practical matter, will or may control the disposi-
tion of a related claim in which the amount to be
paid may exceed $25,000.
(c) An administrative claim may be adjusted,
determined, compromised, or settled by EPA here-
under only after consultation with the Department
of Justice when EPA is informed or is otherwise
aware that the United States or an employee,
agent, or cost-plus contractor of the United States
is involved in litigation based on a claim arising
out of the same incident or transaction.
§10.11 Relationship to other agency
regulations.
The regulations in this part supplement the At-
torney General's regulations in part 14 of Chapter
1 of title 28, CFR, as amended. Those regulations,
including subsequent amendments thereto, and the
regulations in this part apply to the consideration
by the Environmental Protection Agency of ad-
ministrative claims under the Federal Tort Claims
Act.
[38 FR 16868, June 27, 1973, as amended at 51 FR
25832, July 16, 1986]
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PART 11—SECURITY CLASSIFICA-
TION REGULATIONS PURSUANT
TO EXECUTIVE ORDER 11652
Sec.
11.1 Purpose.
11.2 Background.
11.3 Responsibilities.
11.4 Definitions.
11.5 Procedures.
11.6 Access by historical researchers and former Gov-
ernment officials.
AUTHORITY: Executive Order 11652 (37 FR 5209,
March 10, 1972) and the National Security Directive of
May 17, 1972 (37 FR 10053, May 19, 1972).
SOURCE: 37 FR 23541, Nov. 4, 1972, unless otherwise
noted.
§11.1 Purpose.
These regulations establish policy and proce-
dures governing the classification and declassifica-
tion of national security information. They apply
also to information or material designated under
the Atomic Energy Act of 1954, as amended, as
"Restricted Data," or "Formerly Restricted Data"
which, additionally, is subject to the provisions of
the Act and regulations of the Atomic Energy
Commission.
§11.2 Background.
While the Environmental Protection Agency
does not have the authority to originally classify
information or material in the interest of the na-
tional security, it may under certain circumstances
downgrade or declassify previously classified ma-
terial or generate documents incorporating classi-
fied information properly originated by other agen-
cies of the Federal Government which must be
safeguarded. Agency policy and procedures must
conform to applicable provisions of Executive
Order 11652, and the National Security Council
Directive of May 17, 1972, governing the safe-
guarding of national security information.
§11.3 Responsibilities.
(a) Classification and Declassification Commit-
tee: This committee, appointed by the Adminis-
trator, has the authority to act on all suggestions
and complaints with respect to EPA's administra-
tion of this order. It shall establish procedures to
review and act within 30 days upon all applica-
tions and appeals regarding requests for declas-
sification. The Administrator, acting through the
committee, shall be authorized to overrule pre-
vious determinations in whole or in part when, in
its judgment, continued protection is no longer re-
quired. If the committee determines that continued
classification is required under section 5(B) of Ex-
ecutive Order 11652, it shall promptly so notify
the requester and advise him that he may appeal
the denial to the Interagency Classification Review
Committee.
(b) Director, Security and Inspection Division,
Office of Administration: The Director, Security
and Inspection Division, is responsible for the
overall management and direction of a program
designed to assure the proper handling and protec-
tion of classified information, and that classified
information in the Agency's possession bears the
appropriate classification markings. He also will
assure that the program operates in accordance
with the policy established herein, and will serve
as Secretary of the Classification and Declassifica-
tion Committee.
(c) Assistant Administrators, Regional Adminis-
trators, Heads of Staff Offices, Directors of Na-
tional Environmental Research Centers are respon-
sible for designating an official within their re-
spective areas who shall be responsible for:
(1) Serving as that area's liaison with the Direc-
tor, Security and Inspection Division, for questions
or suggestions concerning security classification
matters.
(2) Reviewing and approving, as the representa-
tive of the contracting offices, the DD Form 254,
Contract Security Classification Specification, is-
sued to contractors.
(d) Employees; (1) Those employees generating
documents incorporating classified information
properly originated by other agencies of the Fed-
eral Government are responsible for assuring that
the documents are marked in a manner consistent
with security classification assignments.
(2) Those employees preparing information for
public release are responsible for assuring that
such information is reviewed to eliminate classi-
fied information.
(3) All employees are responsible for bringing
to the attention of the Director, Security and In-
spection Division, any security classification prob-
lems needing resolution.
§11.4 Definitions.
(a) Classified information. Official information
which has been assigned a security classification
category in the interest of the national defense or
foreign relations of the United States.
(b) Classified material. Any document, appara-
tus, model, film, recording, or any other physical
object from which classified information can be
derived by study, analysis, observation, or use of
the material involved.
(c) Marking. The act of physically indicating the
classification assignment on classified material.
(d) National security information. As used in
this order this term is synonymous with "classi-
fied information." It is any information which
must be protected against unauthorized disclosure
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§11.5
in the interest of the national defense or foreign
relations of the United States.
(e) Security classification assignment. The pre-
scription of a specific security classification for a
particular area or item of information. The infor-
mation involved constitutes the sole basis for de-
termining the degree of classification assigned.
(f) Security classification category. The specific
degree of classification (Top Secret, Secret or
Confidential) assigned to classified information to
indicate the degree of protection required.
(1) Top Secret. Top Secret refers to national se-
curity information or material which requires the
highest degree of protection. The test for assigning
Top Secret classification shall be whether its unau-
thorized disclosure could reasonably be expected
to cause exceptionally grave damage to the na-
tional security. Examples of "exceptionally grave
damage" include armed hostilities against the
United States or its allies; disruption of foreign re-
lations vitally affecting the national security; the
compromise of vital national defense plans or
complex cryptologic and communications intel-
ligence systems; the revelation of sensitive intel-
ligence operations; and the disclosure of scientific
or technological developments vital to national se-
curity. This classification shall be used with the
utmost restraint.
(2) Secret. Secret refers to that national security
information or material which requires a substan-
tial degree of protection. The test for assigning Se-
cret classification shall be whether its unauthorized
disclosure could reasonably be expected to cause
serious damage to the national security. Examples
of "serious damage" include disruption of foreign
relations significantly affecting the national secu-
rity; significant impairment of a program or policy
directly related to the national security; revelation
of significant military plans or intelligence oper-
ations; and compromise of scientific or techno-
logical developments relating to national security.
The classification Secret shall be sparingly used.
(3) Confidential. Confidential refers to that na-
tional security information or material which re-
quires protection. The test for assigning Confiden-
tial classification shall be whether its unauthorized
disclosure could reasonably be expected to cause
damage to the national security.
§11.5 Procedures.
(a) General. Agency instructions on access,
marking, safekeeping, accountability, transmission,
disposition, and destruction of classification infor-
mation and material will be found in the EPA Se-
curity Manual for Safeguarding Classified Mate-
rial. These instructions shall conform with the Na-
tional Security Council Directive of May 17, 1972,
governing the classification, downgrading, declas-
sification, and safeguarding of National Security
Information.
(b) Classification. (1) When information or ma-
terial is originated within EPA and it is believed
to require classification, the person or persons re-
sponsible for its origination shall protect it in the
manner prescribed for protection of classified in-
formation. The information will then be transmit-
ted under appropriate safeguards to the Director,
Security and Inspection Division, who will for-
ward it to the department having primary interest
in it with a request that a classification determina-
tion be made.
(2) A holder of information or material which
incorporates classified information properly origi-
nated by other agencies of the Federal Govern-
ment shall observe and respect the classification
assigned by the originator.
(3) If a holder believes there is unnecessary
classification, that the assigned classification is im-
proper, or that the document is subject to declas-
sification, he shall so advise the Director, Security
and Inspection Division, who will be responsible
for obtaining a resolution.
(c) Downgrading and declassification. Classi-
fied information and material officially transferred
to the Agency during its establishment, pursuant to
Reorganization Plan No. 3 of 1970, shall be de-
classified in accordance with procedures set forth
below. Also, the same procedures will apply to the
declassification of any information in the Agen-
cy's possession which originated in departments or
agencies which no longer exist, except that no de-
classification will occur in such cases until other
departments having an interest in the subject mat-
ter have been consulted. Other classified informa-
tion in the Agency's possession may be down-
graded or declassified by the official authorizing
its classification, by a successor in capacity, or by
a supervisory official of either.
(1) General Declassification Schedule—(i) Top
Secret. Information or material originally classified
Top Secret shall become automatically down-
graded to Secret at the end of the second full cal-
endar year following the year in which it was
originated, downgraded to Confidential at the end
of the fourth full calendar year following the year
in which it was originated, and declassified at the
end of the 10th full calendar year following the
year in which it was originated.
(ii) Secret. Information and material originally
classified Secret shall become automatically down-
graded to Confidential at the end of the second
full calendar year following the year in which it
was originated, and declassified at the end of the
eighth full calendar year following the year in
which it was originated.
(iii) Confidential. Information and material
originally classified Confidential shall become
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§11.6
automatically declassified at the end of the sixth
full calendar year following the year in which it
was originated.
(2) Exemption from the General Declassification
Schedule. Information or material classified before
June 1, 1972, assigned to Group 4 under Execu-
tive Order No. 10501, as amended, shall be sub-
ject to the General Declassification Schedule. All
other information or material classified before
June 1, 1972, whether or not assigned to Groups
1, 2, or 3, of Executive Order No. 10501, as
amended, shall be excluded from the General De-
classification Schedule. However, at any time after
the expiration of 10 years after the date of origin
it shall be subject to a mandatory classification re-
view and disposition in accordance with the fol-
lowing criteria and conditions:
(i) It shall be declassified unless it falls within
one of the following criteria:
(a) Classified information or material furnished
by foreign governments or international organiza-
tions and held by the United States on the under-
standing that it be kept in confidence.
(b) Classified information or material specifi-
cally covered by statute, or pertaining to cryptog-
raphy, or disclosing intelligence sources or meth-
ods.
(c) Classified information or material disclosing
a system, plan, installation, project, or specific for-
eign relations matter, the continuing protection of
which is essential to the national security.
(d) Classified information or material the disclo-
sure of which would place a person in immediate
jeopardy.
(ii) Mandatory review of exempted material. All
classified information and material originated after
June 1, 1972, which is exempted under any of the
above criteria shall be subject to a classification
review by the originating department at any time
after the expiration of 10 years from the date of
origin provided:
(a) A department or member of the public re-
quests a review;
(b) The request describes the document or
record with sufficient particularity to enable the
department to identify it; and
(c) The record can be obtained with a reason-
able amount of effort.
(d) Information or material which no longer
qualifies for exemption under any of the above
criteria shall be declassified. Information or mate-
rial which continues to qualify under any of the
above criteria shall be so marked, and, unless im-
possible, a date for automatic declassification shall
be set.
(iii) All requests for "mandatory review" shall
be directed to:
Director, Security and Inspection Division, Environmental
Protection Agency, Washington, DC 20460.
The Director, Security and Inspection Division
shall promptly notify the action office of the re-
quest, and the action office shall immediately ac-
knowledge receipt of the request in writing.
(iv) Burden of proof for administrative deter-
minations. The burden of proof is on the originat-
ing Agency to show that continued classification is
warranted within the terms of this paragraph
(c)(2).
(v) Availability of declassified material. Upon a
determination under paragraph (ii) of this para-
graph (c)(2), that the requested material no longer
warrants classification, it shall be declassified and
made promptly available to the requester, if not
otherwise exempt from disclosure under section
552(b) of Title 5 U.S.C. (Freedom of Information
Act) or other provision of law.
(vi) Classification review requests. As required
by paragraph (ii) of this paragraph (c)(2) of this
order, a request for classification review must de-
scribe the document with sufficient particularity to
enable the Department or Agency to identify it
and obtain it with a reasonable amount of effort.
Whenever a request is deficient in its description
of the record sought, the requester should be asked
to provide additional identifying information
whenever possible. Before denying a request on
the ground that it is unduly burdensome, the re-
quester should be asked to limit his request to
records that are reasonably obtainable. If nonethe-
less the requester does not describe the records
sought with sufficient particularity, or the record
requested cannot be obtained with a reasonable
amount of effort, the requester shall be notified of
the reasons why no action will be taken and of his
right to appeal such decision.
§11.6 Access by historical researchers
and former Government officials.
(a) Access to classified information or material
may be granted to historical researchers or to per-
sons who formerly occupied policymaking posi-
tions to which they were appointed by the Presi-
dent: Provided, however, That in each case the
head of the originating Department shall:
(1) Determine that access is clearly consistent
with the interests of the national security; and
(2) Take appropriate steps to assure that classi-
fied information or material is not published or
otherwise compromised.
(b) Access granted a person by reason of his
having previously occupied a policymaking posi-
tion shall be limited to those papers which the
former official originated, reviewed, signed, or re-
ceived while in public office, except as related to
the "Declassification of Presidential Papers,"
which shall be treated as follows:
(1) Declassification of Presidential Papers. The
Archivist of the United States shall have authority
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§11.6
to review and declassify information and material eluding a Presidential library. Such declassification
which has been classified by a President, his shall only be undertaken in accord with:
White House Staff or special committee or com- (i) The terms of the donor's deed of gift;
mission appointed by him and which the Archivist (") Consultations with the Departments having
has in his custody at any archival depository, in- a primary subject-matter interest; and
(iii) The provisions of § 11.5(c).
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PART 12—NONDISCRIMINATION
ON THE BASIS OF HANDICAP IN
PROGRAMS OR ACTIVITIES CON-
DUCTED BY THE ENVIRONMENTAL
PROTECTION AGENCY
Sec.
12.101 Purpose.
12.102 Application.
Definitions.
-12.109 [Reserved]
Self-evaluation.
Notice.
12.112—12.129 [Reserved]
12.130 General prohibitions against discrimination.
12.131—12.139 [Reserved]
12.140 Employment.
12.141—12.148 [Reserved]
12.149 Program accessibility: Discrimination prohibited.
12.150 Program accessibility: Existing facilities.
12.151 Program accessibility: New construction and al-
terations.
12.152—12.159 [Reserved]
12.160 Communications.
12.161—12.169 [Reserved]
12.170 Compliance procedures.
12.171—12.999 [Reserved]
AUTHORITY: 29 U.S.C. 794.
SOURCE: 52 FR 30606, Aug. 14, 1987, unless otherwise
noted.
§12.101 Purpose.
The purpose of this part is to effectuate section
119 of the Rehabilitation, Comprehensive Serv-
ices, and Developmental Disabilities Amendments
of 1978, which amended section 504 of the Reha-
bilitation Act of 1973 to prohibit discrimination on
the basis of handicap in programs or activities
conducted by Executive agencies or the U.S. Post-
al Service. Section 504 regulations applicable to
recipients of financial assistance from the Environ-
mental Protection Agency (EPA) may be found at
40 CFR part 7 (1986).
§12.102 Application.
This part applies to all programs or activities
conducted by the agency, except for programs or
activities conducted outside the United States that
do not involve individuals with handicaps in the
United States.
§12.103 Definitions.
For purposes of this part, the term—
Agency means Environmental Protection Agen-
cy.
Assistant Attorney General means the Assistant
Attorney General, Civil Rights Division, U.S. De-
partment of Justice.
Auxiliary aids means services or devices that
enable persons with impaired sensory, manual, or
speaking skills to have an equal opportunity to
participate in, and enjoy the benefits of, programs
or activities conducted by the agency. For exam-
ple, auxiliary aids useful for persons with impaired
vision include readers, Brailled materials, audio re-
cordings, and other similar services and devices.
Auxiliary aids useful for persons with impaired
hearing include telephone handset amplifiers, tele-
phones compatible with hearing aids, tele-
communication devices for deaf persons (TDD's),
interpreters, notetakers, written materials, and
other similar services and devices.
Complete complaint means a written statement
that contains the complainant's name and address
and describes the agency's alleged discriminatory
action in sufficient detail to inform the agency of
the nature and date of the alleged violation of sec-
tion 504. It shall be signed by the complainant or
by someone authorized to do so on his or her be-
half. Complaints filed on behalf of classes or third
parties shall describe or identify (by name, if pos-
sible) the alleged victims of discrimination.
Facility means all or any portion of buildings,
structures, equipment, roads, walks, parking lots,
rolling stock or other conveyances, or other real or
personal property.
Individual with handicaps means any person
who has a physical or mental impairment that sub-
stantially limits one or more major life activities,
has a record of such an impairment, or is regarded
as having such an impairment. As used in this def-
inition, the phrase:
(1) Physical or mental impairment includes—
(i) Any physiological disorder or condition, cos-
metic disfigurement, or anatomical loss affecting
one or more of the following body systems: Neu-
rological; musculoskeletal; special sense organs;
respiratory, including speech organs; cardio-
vascular; reproductive, digestive, genitourinary;
hemic and lymphatic; skin, and endocrine; or
(ii) Any mental or psychological disorder, such
as mental retardation, organic brain syndrome,
emotional or mental illness, and specific learning
disabilities. The term physical or mental impair-
ment includes, but is not limited to, such diseases
and conditions as orthopedic, visual, speech, and
hearing impairments, cerebral palsy, epilepsy,
muscular dystrophy, multiple sclerosis, cancer,
heart disease, diabetes, mental retardation, emo-
tional illness, and drug addiction and alcoholism.
(2) Major life activities includes functions such
as caring for one's self, performing manual tasks,
walking, seeing, hearing, speaking, breathing,
learning, and working.
(3) Has a record of such an impairment means
has a history of, or has been misclassified as hav-
ing, a mental or physical impairment that substan-
tially limits one or more major life activities.
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§12.110
(4) Is regarded as having an impairment
means—
(i) Has a physical or mental impairment that
does not substantially limit major life activities but
is treated by the agency as constituting such a lim-
itation;
(ii) Has a physical or mental impairment that
substantially limits major life activities only as a
result of the attitudes of others toward such im-
pairment; or
(iii) Has none of the impairments defined in
subparagraph (1) of this definition but is treated
by the agency as having such an impairment.
Qualified individual with handicaps means—
(1) With respect to any agency program or ac-
tivity under which a person is required to perform
services or to achieve a level of accomplishment,
an individual with handicaps who meets the essen-
tial eligibility requirements and who can achieve
the purpose of the program or activity, without
modifications in the program or activity that the
agency can demonstrate would result in a fun-
damental alteration in its nature; or
(2) With respect to any other program or activ-
ity an individual with handicaps who meets the es-
sential eligibility requirements for participation in,
or receipt of benefits from, that program or activ-
ity.
(3) Qualified handicapped person as that term is
defined for purposes of employment in 29 CFR
1613.702(f), which is made applicable to this part
by §12.140.
Section 504 means section 504 of the Rehabili-
tation Act of 1973 (Pub. L. 93-112, 87 Stat. 394
(29 U.S.C. 794)), as amended by the Rehabilita-
tion Act Amendments of 1974 (Pub. L. 93-516,
88 Stat. 1617); and the Rehabilitation, Comprehen-
sive Services, and Developmental Disabilities
Amendments of 1978 (Pub. L. 95-602, 92 Stat.
2955); and the Rehabilitation Act Amendments of
1986 (Pub. L. 99-506, 100 Stat. 1810). As used
in this part, section 504 applies only to programs
or activities conducted by Executive agencies and
not to federally assisted programs.
§§12.104—12.109 [Reserved]
§12.110 Self-evaluation.
(a) The agency shall, by November 13, 1987,
begin a nationwide evaluation, of its current poli-
cies and practices, and the effects thereof, that do
not or may not meet the requirements of this part.
The agency shall provide an opportunity to inter-
ested persons, including individuals with handi-
caps or organizations representing individuals with
handicaps to, participate in the self-evaluation
process by submitting comments (both oral and
written).
(b) The evaluation shall be concluded by Sep-
tember 14, 1988, with a written report submitted
to the Administrator that states the findings of the
self-evaluation, any remedial action taken, and rec-
ommendations, if any, for further remedial action.
(c) The Administrator shall, within 60 days of
the receipt of the report of the evaluation and rec-
ommendations, direct that certain remedial actions
be taken as he/she deems appropriate.
(d) The agency shall, for at least three years fol-
lowing completion of the evaluation required
under paragraph (b) of this section, maintain on
file and make available for public inspection:
(1) A list of the interested persons consulted;
(2) A description of the areas examined and any
problems identified; and
(3) A description of any modifications made.
§12.111 Notice.
The agency shall make available to employees,
unions representing employees, applicants, partici-
pants, beneficiaries, and other interested persons
such information regarding the provisions of this
part and its applicability to the programs or activi-
ties conducted by the agency, and make such in-
formation available to them in such manner as the
agency head finds necessary to apprise such per-
sons of the protections against discrimination as-
sured them by section 504 and this regulation.
§§12.112—12.129 [Reserved]
§12.130 General prohibitions against
discrimination.
(a) No qualified individual with handicaps shall,
on the basis of handicap, be excluded from partici-
pation in, be denied the benefits of, or otherwise
be subjected to discrimination under any program
or activity conducted by the agency.
(b) (1) The agency, in providing any aid, bene-
fit, or service, may not, directly or through con-
tractual, licensing, or other arrangements, on the
basis of handicap—
(i) Deny a qualified individual with handicaps
the opportunity to participate in or benefit from
the aid, benefit, or service;
(ii) Afford a qualified individual with handicaps
an opportunity to participate in or benefit from the
aid, benefit, or service that is not equal to that af-
forded others;
(iii) Provide a qualified individual with handi-
caps with an aid, benefit, or service that is not as
effective in affording equal opportunity to obtain
the same result, to gain the same benefit, or to
reach the same level of achievement as that pro-
vided to others;
(iv) Provide different or separate aid, benefits,
or services to individuals with handicaps or to any
class of individuals with handicaps than is pro-
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§12.150
vided to others unless such action is necessary to
provide qualified individuals with handicaps with
aid, benefits, or services that are as effective as
those provided to others;
(v) Deny a qualified individual with handicaps
the opportunity to participate as a member of plan-
ning or advisory boards; or
(vi) Otherwise limit a qualified individual with
handicaps in the enjoyment of any right, privilege,
advantage, or opportunity enjoyed by others re-
ceiving the aid, benefit, or service.
(2) The agency may not deny a qualified indi-
vidual with handicaps the opportunity to partici-
pate in programs or activities that are not separate
or different, despite the existence of permissibly
separate or different programs or activities.
(3) The agency may not, directly or through
contractual or other arrangements, utilize criteria
or methods of administration the purpose or effect
of which would—
(i) Subject qualified individuals with handicaps
to discrimination on the basis of handicap; or
(ii) Defeat or substantially impair accomplish-
ment of individuals with handicaps.
(4) The agency may not, in determining the site
or location of a facility, make selections the pur-
pose or effect of which would—
(i) Exclude individuals with handicaps from,
deny them the benefits of, or otherwise subject
them to discrimination under any program or ac-
tivity conducted by the agency; or
(ii) Defeat or substantially impair the accom-
plishment of the objectives of a program or activ-
ity with respect to individuals with handicaps.
(5) The agency, in the selection of procurement
contractors, may not use criteria that subject quali-
fied individuals with handicaps to discrimination
on the basis of handicap.
(6) The agency may not administer a licensing
or certification program in a manner that subjects
qualified individuals with handicaps to discrimina-
tion on the basis of handicap, nor may the agency
establish requirements for the programs or activi-
ties of licensees or certified entities that subject
qualified individuals with handicaps to discrimina-
tion on the basis of handicap. However, the pro-
gram or activities of entities that are licensed or
certified by the agency are not, themselves, cov-
ered by this part.
(c) The exclusion of nonhandicapped persons
from the benefits of a program limited by Federal
statute or Executive order to individuals with
handicaps or the exclusion of a specific class of
individuals with handicaps from a program limited
by Federal statute or Executive order to a different
class of individuals with handicaps is not prohib-
ited by this part.
(d) The agency shall administer programs and
activities in the most integrated setting appropriate
to the needs of qualified individuals with handi-
caps.
§§12.131—12.139 [Reserved]
§12.140 Employment.
No qualified individual with handicaps shall, on
the basis of handicap, be subjected to discrimina-
tion in employment under any program or activity
conducted by the agency. The definitions, require-
ments, and procedures of section 501 of the Reha-
bilitation Act of 1973 (29 U.S.C. 791), as estab-
lished by the Equal Employment Opportunity
Commission in 29 CFR part 1613, shall apply to
employment in federally conducted programs or
activities.
§§12.141—12.148 [Reserved]
§12.149 Program accessibility: Dis-
crimination prohibited.
Except as otherwise provided in §12.150, no
qualified individual with handicaps shall, because
the agency's facilities are inaccessible to or unus-
able by individuals with handicaps, be denied the
benefits of, be excluded from participation in, or
otherwise be subjected to discrimination under any
program or activity conducted by the agency.
§12.150 Program accessibility: Exist-
ing facilities.
(a) General. The agency shall operate each pro-
gram or activity so that the program or activity,
when viewed in its entirety, is readily accessible
to and usable by individuals with handicaps. This
paragraph does not—
(1) Necessarily require the agency to make each
of its existing facilities accessible to and usable by
individuals with handicaps; or
(2) Require the agency to take any action that
it can demonstrate would result in a fundamental
alteration in the nature of a program or activity or
in undue financial and administrative burdens. In
those circumstances where agency personnel be-
lieve that the proposed action would fundamen-
tally alter the program or activity or would result
in undue financial and administrative burdens, the
agency has the burden of proving that compliance
with § 12.150(a) would result in such alteration or
burdens. The decision that compliance would re-
sult in such alteration or burdens must be made by
the agency head or designee after considering all
agency resources available for use in the funding
and operation of the conducted program or activ-
ity, and must be accompanied by a written state-
ment of the reasons for reaching that conclusion.
If an action would result in such an alteration or
such burdens, the agency shall take any other ac-
tion that would not result in such an alteration or
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§12.151
such burdens but would nevertheless ensure that
individuals with handicaps receive the benefits and
services of the program or activity.
(b) Methods. The agency may comply with the
requirements of this section through such means as
redesign of equipment, reassignment of services to
accessible buildings, assignment of aides to bene-
ficiaries, home visits, delivery of services at alter-
nate accessible sites, alteration of existing facilities
and construction of new facilities, use of acces-
sible rolling stock, or any other methods that result
in making its programs or activities readily acces-
sible to and usable by individuals with handicaps.
The agency is not required to make structural
changes in existing facilities where other methods
are effective in achieving compliance with this
section. The agency, in making alterations to exist-
ing buildings, shall meet accessibility requirements
to the extent compelled by the Architectural Bar-
riers Act of 1968, as amended (42 U.S.C. 4151-
4157), and any regulations implementing it. In
choosing among available methods for meeting the
requirements of this section, the agency shall give
priority to those methods that offer programs and
activities to qualified individuals with handicaps in
the most integrated setting appropriate.
(c) Time period for compliance. The agency
shall comply with the obligations established
under this section by November 13, 1987, except
that where structural changes in facilities are un-
dertaken, such changes shall be made by Septem-
ber 14, 1990, but in any event as expeditiously as
possible.
(d) Transition plan. In the event that structural
changes to facilities will be undertaken to achieve
program accessibility, the agency shall develop, by
March 14, 1988, a transition plan setting forth the
steps necessary to complete such changes. The
agency shall provide an opportunity to interested
persons, including individuals with handicaps or
organizations representing individuals with handi-
caps to participate in the development of the tran-
sition plan by submitting comments (both oral and
written). A copy of the transition plan shall be
made available for public inspection. The plan
shall, at a minimum—
(1) Identify physical obstacles in the agency's
facilities that limit the accessibility of its programs
or activities to individuals with handicaps;
(2) Describe in detail the methods that will be
used to make the facilities accessible;
(3) Specify the schedule for taking the steps
necessary to achieve compliance with this section
and, if the time period of the transition plan is
longer than one year, identify steps that will be
taken during each year of the transition period;
and
(4) Indicate the official responsible for imple-
mentation of the plan.
§12.151 Program accessibility: New
construction and alterations.
Each building or part of a building that is con-
structed or altered by, on behalf of, or for the use
of the agency shall be designed, constructed, or al-
tered so as to be readily accessible to and usable
by individuals with handicaps. The definitions, re-
quirements, and standards of the Architectural Bar-
riers Act (42 U.S.C. 4151-4157), as established in
41 CFR 101-19.600 to 101-19.607, apply to
buildings covered by this section.
§§12.152—12.159 [Reserved]
§12.160 Communications.
(a) The agency shall take appropriate steps to
ensure effective communication with applicants,
participants, personnel of other Federal entities,
and members of the public.
(1) The agency shall furnish appropriate auxil-
iary aids where necessary to afford an individual
with handicaps an equal opportunity to participate
in, and enjoy the benefits of, a program or activity
conducted by the agency.
(i) In determining what type of auxiliary aid is
necessary, the agency shall give primary consider-
ation to the requests of the individuals with handi-
caps.
(ii) The agency need not provide individually
prescribed devices, readers for personal use or
study, or other devices of a personal nature.
(2) Where the agency communicates with appli-
cants and beneficiaries by telephone, telecommuni-
cation devices for deaf persons (TDD's) or equally
effective telecommunication systems shall be used.
(b) The agency shall ensure that interested per-
sons, including persons with impaired vision or
hearing, can obtain information as to the existence
and location of accessible services, activities, and
facilities.
(c) The agency shall provide signage at a pri-
mary entrance to each of its inaccessible facilities,
directing users to a location at which they can ob-
tain information about accessible facilities. The
international symbol for accessibility shall be used
at each primary entrance of an accessible facility.
(d) This section does not require the agency to
take any action that it can demonstrate would re-
sult in a fundamental alteration in the nature of a
program or activity or in undue financial and ad-
ministrative burdens. In those circumstances where
agency personnel believe that the proposed action
would fundamentally alter the program or activity
or would result in undue financial and administra-
tive burdens, the agency has the burden of proving
that compliance with § 12.160 would result in such
alteration or burdens. The decision that compliance
would result in such alteration or burdens must be
made by the agency head or designee after consid-
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§12.170
ering all agency resources available for use in the
funding and operation of the conducted program
or activity, and must be accompanied by a written
statement of the reasons for reaching that conclu-
sion. If an action required to comply with this sec-
tion would result in such an alteration or such bur-
dens, the agency shall take any other action that
would not result in such an alteration or such bur-
dens but would nevertheless ensure that, to the
maximum extent possible, individuals with handi-
caps receive the benefits and services of the pro-
gram or activity.
§§12.161—12.169 [Reserved]
§12.170 Compliance procedures.
(a) Except as provided in paragraph (b) of this
section, this section applies to all allegations of
discrimination on the basis of handicap in pro-
grams or activities conducted by the agency.
(b) The agency shall process complaints alleg-
ing violations of section 504 with respect to em-
ployment according to the procedures established
by the Equal Employment Opportunity Commis-
sion in 29 CFR part 1613 pursuant to section 501
of the Rehabilitation Act of 1973 (29 U.S.C. 791).
(c) Responsibility for coordinating implementa-
tion of this section shall be vested in the Director
of the Office of Civil Rights, EPA or his/her des-
ignate.
(d) The complainant may file a complete com-
plaint at any EPA office. All complete complaints
must be filed within 180 days of the alleged act
of discrimination. The agency may extend this
time period for good cause. The agency shall ac-
cept and investigate all complete complaints for
which it has jurisdiction.
(e) If the agency receives a complaint over
which it does not have jurisdiction, it shall
promptly notify the complainant and shall make
reasonable efforts to refer the complaint to the ap-
propriate Government entity.
(f) The agency shall notify the Architectural and
Transportation Barriers Compliance Board upon
receipt of any complaint alleging that a building of
facility that is subject to the Architectural Barriers
Act of 1968, as amended (42 U.S.C. 4151-4157),
is not readily accessible to and usable by individ-
uals with handicaps.
(g) Within 180 days of the receipt of a complete
complaint for which it has jurisdiction, the agency
shall notify the complainant of the results of the
investigation in a letter containing—
(1) Findings of fact and conclusions of law;
(2) A description of a remedy for each violation
found; and
(3) A notice of the right to appeal.
(h) Appeals of the findings of fact and conclu-
sions of law or remedies must be filed by the
complainant within 90 days of receipt from the
agency of the letter required by paragraph (g) of
this section. The agency may extend this time for
good cause.
(i) Timely appeals shall be accepted and proc-
essed by the Administrator or a designee.
(j) The Administrator or a designee shall notify
the complainant of the results of the appeal within
60 days of the receipt of the request. If the Ad-
ministrator or designee determines that additional
information is needed from the complainant, he or
she shall have 60 days from the date of receipt of
the additional information to make his or her de-
termination on the appeal.
(k) The time limits cited in paragraphs (g) and
(j) of this section above may be extended with the
permission of the Assistant Attorney General.
(1) The agency may delegate its authority for
conducting complaint investigations to other Fed-
eral agencies, except that the authority for making
the final determination may not be delegated to
another agency.
§§12.171—12.999 [Reserved]
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PART 13—CLAIMS COLLECTION
STANDARDS
Subpart A—General
Sec.
13.1 Purpose and scope.
13.2 Definitions.
13.3 Interagency claims.
13.4 Other remedies.
13.5 Claims involving criminal activities or misconduct.
13.6 Subdivision of claims not authorized.
13.7 Omission not a defense.
Subpart B—Collection
13.8 Collection rule.
13.9 Initial notice.
13.10 Aggressive collection actions; documentation.
13.11 Interest, penalty and administrative costs.
13.12 Interest and charges pending waiver or review.
13.13 Contracting for collection services.
13.14 Use of credit reporting agencies.
Taxpayer information.
13.16 Liquidation of collateral.
13.17 Suspension or revocation of license or eligibility.
13.18 Installment payments.
13.19 Analysis of costs; automation; prevention of over-
payments, delinquencies or defaults.
Subpart C—Administrative Offset
13.20 Administrative offset of general debts.
13.21 Employee salary offset—general.
13.22 Salary offset when EPA is the creditor agency.
13.23 Salary offset when EPA is not the creditor agen-
cy.
Subpart D—Compromise of Debts
13.24 General.
13.25 Standards for compromise.
13.26 Payment of compromised claims.
13.27 Joint and several liability.
13.28 Execution of releases.
Subpart E—Suspension of Collection Action
13.29 Suspension—general.
13.30 Standards for suspension.
Subpart F—Termination of Debts
13.31 Termination—general.
13.32 Standards for termination.
Subpart G—Referrals
13.33 Referrals to the Department of Justice.
Subpart H—Referral of Debts to IRS for Tax
Refund Offset
13.34 Purpose.
13.35 Applicability and scope.
13.36 Administrative charges.
13.37 Notice requirement before offset.
13.38 Review within the Agency.
13.39 Agency determination.
13.40 Stay of offset.
AUTHORITY:5 U.S.C. 552a, 5512, and 5514; 31 U.S.C.
3711 et seq. and 3720A; 4 CFR parts 101-10.
SOURCE: 53 FR 37270, Sept. 23, 1988, unless other-
wise noted.
Subpart A—General
§ 13.1 Purpose and scope.
This regulation prescribes standards and proce-
dures for the Environmental Protection Agency's
(EPA's) collection and disposal of debts. These
standards and procedures are applicable to all
debts for which a statute, regulation or contract
does not prescribe different standards or proce-
dures. This regulation covers EPA's collection,
compromise, suspension, termination, and referral
of debts.
§13.2 Definitions.
(a) Debt means an amount owed to the United
States from sources which include loans insured or
guaranteed by the United States and all other
amounts due the United States from fees, grants,
contracts, leases, rents, royalties, services, sales of
real or personal property, overpayments, fines,
penalties, damages, interest, forfeitures (except
those arising under the Uniform Code of Military
Justice), and all other similar sources. As used in
this regulation, the terms debt and claim are syn-
onymous.
(b) Delinquent debt means any debt which has
not been paid by the date specified by the Govern-
ment for payment or which has not been satisfied
in accordance with a repayment agreement.
(c) Debtor means an individual, organization,
association, corporation, or a State or local gov-
ernment indebted to the United States or a person
or entity with legal responsibility for assuming the
debtor's obligation.
(d) Agency means the United States Environ-
mental Protection Agency.
(e) Administrator means the Administrator of
EPA or an EPA employee or official designated to
act on the Administrator's behalf.
(f) Administrative offset means the withholding
of money payable by the United States to, or held
by the United States for, a person to satisfy a debt
the person owes the Government.
(g) Creditor agency means the Federal agency
to which the debt is —wed.
(h) Disposable pay means that part of current
basic pay, special pay, incentive pay, retired pay,
retainer pay, or in the case of an employee not en-
titled to basic pay, other authorized pay remaining
after the deduction of any amount described in 5
CFR 581.105 (b) through (f). These deductions in-
clude, but are not limited to: Social security
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§13.3
withholdings; Federal, State and local tax
withholdings; health insurance premiums; retire-
ment contributions; and life insurance premiums.
(i) Employee means a current employee of the
Federal Government including a current member
of the Armed Forces.
(j) Person means an individual, firm, partner-
ship, corporation, association and, except for pur-
poses of administrative offsets under subpart C
and interest, penalty and administrative costs under
subpart B of this regulation, includes State and
local governments and Indian tribes and compo-
nents of tribal governments.
(k) Employee salary offset means the adminis-
trative collection of a debt by deductions at one or
more officially established pay intervals from the
current pay account of an employee without the
employee's consent.
(1) Waiver means the cancellation, remission,
forgiveness or non-recovery of a debt or debt-re-
lated charge as permitted or required by law.
§ 13.3 Interagency claims.
This regulation does not apply to debts owed
EPA by other Federal agencies. Such debts will be
resolved by negotiation between the agencies or
by referral to the General Accounting Office
(GAO).
§ 13.4 Other remedies.
(a) This regulation does not supersede or require
omission or duplication of administrative proceed-
ings required by contract, statute, regulation or
other Agency procedures, e.g., resolution of audit
findings under grants or contracts, informal grant
appeals, formal appeals, or review under a pro-
curement contract.
(b) The remedies and sanctions available to the
Agency under this regulation for collecting debts
are not intended to be exclusive. The Agency may
impose, where authorized, other appropriate sanc-
tions upon a debtor for inexcusable, prolonged or
repeated failure to pay a debt. For example, the
Agency may stop doing business with a grantee,
contractor, borrower or lender; convert the method
of payment under a grant or contract from an ad-
vance payment to a reimbursement method; or re-
voke a grantee's or contractor's letter-of-credit.
§ 13.5 Claims involving criminal activi-
ties or misconduct.
(a) The Administrator will refer cases of sus-
pected criminal activity or misconduct to the EPA
Office of Inspector General. That office has the re-
sponsibility for investigating or referring the mat-
ter, where appropriate, to the Department of Jus-
tice (DOJ), and/or returning it to the Administrator
for further actions. Examples of activities which
should be referred are matters involving fraud,
anti-trust violations, embezzlement, theft, false
claims or misuse of Government money or prop-
erty.
(b) The Administrator will not administratively
compromise, terminate, suspend or otherwise dis-
pose of debts involving criminal activity or mis-
conduct without the approval of DOJ.
§ 13.6 Subdivision of claims not au-
thorized.
A claim will not be subdivided to avoid the
$20,000 limit on the Agency's authority to com-
promise, suspend, or terminate a debt. A debtor's
liability arising from a particular transaction or
contract is a single claim.
§ 13.7 Omission not a defense.
Failure by the Administrator to comply with any
provision of this regulation is not available to a
debtor as a defense against payment of a debt.
Subpart B—Collection
§ 13.8 Collection rule.
(a) The Administrator takes action to collect all
debts owed the United States arising out of EPA
activities and to reduce debt delinquencies. Collec-
tion actions may include sending written demands
to the debtor's last known address. Written de-
mand may be preceded by other appropriate ac-
tion, including immediate referral to DOJ for liti-
gation, when such action is necessary to protect
the Government's interest. The Administrator may
contact the debtor by telephone, in person and/or
in writing to demand prompt payment, to discuss
the debtor's position regarding the existence,
amount or repayment of the debt, to inform the
debtor of its rights (e.g., to apply for waiver of the
indebtedness or to have an administrative review)
and of the basis for the debt and the consequences
of nonpayment or delay in payment.
(b) The Administrator maintains an administra-
tive file for each debt and/or debtor which docu-
ments the basis for the debt, all administrative col-
lection actions regarding the debt (including com-
munications to and from the debtor) and its final
disposition. Information from a debt file relating to
an individual may be disclosed only for purposes
which are consistent with this regulation, the Pri-
vacy Act of 1974 and other applicable law.
§ 13.9 Initial notice.
(a) When the Administrator determines that a
debt is owed EPA, he provides a written initial no-
tice to the debtor. Unless otherwise provided by
agreement, contract or order, the initial notice in-
forms the debtor:
(1) Of the amount, nature and basis of the debt;
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§13.11
(2) That payment is due immediately upon re-
ceipt of the notice;
(3) That the debt is considered delinquent if it
is not paid within 30 days of the date mailed or
hand-delivered;
(4) That interest charges and, except for State
and local governments and Indian tribes, penalty
charges and administrative costs may be assessed
against a delinquent debt;
(5) Of any rights available to the debtor to dis-
pute the validity of the debt or to have recovery
of the debt waived (citing the available review or
waiver authority, the conditions for review or
waiver, and the effects of the review or waiver re-
quest on the collection of the debt), and of the
possibility of assessment of interest, penalty and
administrative costs; and
(6) The address, telephone number and name of
the person available to discuss the debt.
(b) EPA will respond promptly to communica-
tions from the debtor. Response generally will be
within 20 days of receipt of communication from
the debtor.
(c) Subsequent demand letters also will advise
the debtor of any interest, penalty or administra-
tive costs which have been assessed and will ad-
vise the debtor that the debt may be referred to a
credit reporting agency (see §13.14), a collection
agency (see § 13.13) or to DOJ (see § 13.33) if it
is not paid.
§13.10 Aggressive collection actions;
documentation.
(a) EPA takes actions and effective follow-up
on a timely basis to collect all claims of the Unit-
ed States for money and property arising out of
EPA's activities. EPA cooperates with other Fed-
eral agencies in their debt collection activities.
(b) All administrative collection actions are doc-
umented in the claim file, and the bases for any
compromise, termination or suspension of collec-
tion actions is set out in detail. This documenta-
tion, including the Claims Collection Litigation
Report required § 13.33, is retained in the appro-
priate debt file.
§13.11 Interest, penalty and adminis-
trative costs.
(a) Interest. EPA will assess interest on all de-
linquent debts unless prohibited by statute, regula-
tion or contract.
(1) Interest begins to accrue on all debts from
the date of the initial notice to the debtor. EPA
will not recover interest where the debt is paid
within 30 days of the date of the notice. EPA will
assess an annual rate of interest that is equal to the
rate of the current value of funds to the United
States Treasury (i.e., the Treasury tax and loan ac-
count rate) as prescribed and published by the
Secretary of the Treasury in the FEDERAL REG-
ISTER and the Treasury Fiscal Requirements Man-
ual Bulletins, unless a different rate is necessary to
protect the interest of the Government. EPA will
notify the debtor of the basis for its finding that
a different rate is necessary to protect the interest
of the Government.
(2) The Administrator may extend the 30-day
period for payment where he determines that such
action is in the best interest of the Government. A
decision to extend or not to extend the payment
period is final and is not subject to further review.
(3) The rate of interest, as initially assessed, re-
mains fixed for the duration of the indebtedness.
If a debtor defaults on a repayment agreement, in-
terest may be set at the Treasury rate in effect on
the date a new agreement is executed.
(4) Interest will not be assessed on interest
charges, administrative costs or later payment pen-
alties. However, where a debtor defaults on a pre-
vious repayment agreement and interest, adminis-
trative costs and penalties charges have been
waived under the defaulted agreement, these
charges can be reinstated and added to the debt
principal under any new agreement and interest
charged on the entire amount of the debt.
(b) Administrative costs of collecting overdue
debts. The costs of the Agency's administrative
handling of overdue debts, based on either actual
or average cost incurred, will be charged on all
debts except those owed by State and local gov-
ernments and Indian tribes. These costs include
both direct and indirect costs. Administrative costs
will be assessed monthly throughout the period the
debt is overdue except as provided by § 13.12.
(c) Penalties. As provided by 31 U.S.C.
3717(e)(2), a penalty charge will be assessed on
all debts, except those owned by State and local
governments and Indian tribes, more than 90 days
delinquent. The penalty charge will be at a rate
not to exceed 6% per annum and will be assessed
monthly.
(d) Allocation of payments. A partial payment
by a debtor will be applied first to outstanding ad-
ministrative costs, second to penalty assessments,
third to accrued interest and then to the outstand-
ing debt principal.
(e) Waiver. (1) The Administrator may (without
regard to the amount of the debt) waive collection
of all or part of accrued interest, penalty or admin-
istrative costs, where he determines that—
(i) Waiver is justified under the criteria of
§13.25;
(ii) The debt or the charges resulted from the
Agency's error, action or inaction, and without
fault by the debtor; or
(iii) Collection of these charges would be
against equity and good conscience or not in the
best interest of the United States.
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§13.12
(2) A decision to waive interest, penalty charges
or administrative costs may be made at any time
prior to payment of a debt. However, where these
charges have been collected prior to the waiver
decision, they will not be refunded. The Adminis-
trator's decision to waive or not waive collection
of these charges is a final agency action.
§13.12 Interest and charges pending
waiver or review.
Interest, penalty charges and administrative
costs will continue to accrue on a debt during ad-
ministrative appeal, either formal or informal, and
during waiver consideration by the Agency; ex-
cept, that interest, penalty charges and administra-
tive costs will not be assessed where a statute or
a regulation specifically prohibits collection of the
debt during the period of the administrative appeal
or the Agency review.
§13.13 Contracting for collection serv-
ices.
EPA will use private collection services where
it determines that their use is in the best interest
of the Government. Where EPA determines that
there is a need to contract for collection services
it will—
(a) Retain sole authority to resolve any dispute
by the debtor of the validity of the debt, to com-
promise the debt, to suspend or terminate collec-
tion action, to refer the debt to DOJ for litigation,
and to take any other action under this part which
does not result in full collection of the debt;
(b) Require the contractor to comply with the
Privacy Act of 1974, as amended, to the extent
specified in 5 U.S.C. 552a(m), with applicable
Federal and State laws pertaining to debt collec-
tion practices (e.g., the Fair Debt Collection Prac-
tices Act (15 U.S.C. 1692 et seq.)), and with ap-
plicable regulations of the Internal Revenue Serv-
ice;
(c) Require the contractor to account accurately
and fully for all amounts collected; and
(d) Require the contractor to provide to EPA,
upon request, all data and reports contained in its
files relating to its collection actions on a debt.
§13.14 Use of credit reporting agen-
cies.
EPA reports delinquent debts to appropriate
credit reporting agencies.
(a) EPA provides the following information to
the reporting agencies:
(1) A statement that the claim is valid and is
overdue;
(2) The name, address, taxpayer identification
number and any other information necessary to es-
tablish the identity of the debtor;
(3) The amount, status and history of the debt;
and
(4) The program or pertinent activity under
which the debt arose.
(b) Before disclosing debt information, EPA
will:
(1) Take reasonable action to locate the debtor
if a current address is not available; and
(2) If a current address is available, notify the
debtor by certified mail, return receipt requested,
that:
(i) The designated EPA official has reviewed
the claim and has determined that it is valid and
overdue;
(ii) That within 60 days EPA intends to disclose
to a credit reporting agency the information au-
thorized for disclosure by this subsection; and
(iii) The debtor can request a complete expla-
nation of the claim, can dispute the information in
EPA's records concerning the claim, and can file
for an administrative review, waiver or reconsider-
ation of the claim, where applicable.
(c) Before information is submitted to a credit
reporting agency, EPA will provide a written state-
ment to the reporting agency that all required ac-
tions have been taken. Additionally, EPA will,
thereafter, ensure that the credit reporting agency
is promptly informed of any substantive change in
the conditions or amounts of the debt, and prompt-
ly verify or correct information relevant to the
claim.
(d) If a debtor disputes the validity of the debt,
the credit reporting agency will refer the matter to
the appropriate EPA official. The credit reporting
agency will exclude the debt from its reports until
EPA certifies in writing that the debt is valid.
§13.15 Taxpayer information.
(a) The Administrator may obtain a debtor's
current mailing address from the Internal Revenue
Service.
(b) Addresses obtained from the Internal Reve-
nue Service will be used by the Agency, its offi-
cers, employees, agents or contractors and other
Federal agencies only to collect or dispose of
debts, and may be disclosed to credit reporting
agencies only for the purpose of their use in pre-
paring a commercial credit report on the taxpayer
for use by EPA.
§ 13.16 Liquidation of collateral.
Where the Administrator holds a security instru-
ment with a power of sale or has physical posses-
sion of collateral, he may liquidate the security or
collateral and apply the proceeds to the overdue
debt. EPA will exercise this right where the debtor
fails to pay within a reasonable time after demand,
unless the cost of disposing of the collateral is dis-
proportionate to its value or special circumstances
-------
§13.20
require judicial foreclosure. However, collection
from other businesses, including liquidation of se-
curity or collateral, is not a prerequisite to requir-
ing payment by a surety or insurance company un-
less expressly required by contract or statute. The
Administrator will give the debtor reasonable no-
tice of the sale and an accounting of any surplus
proceeds and will comply with any other require-
ments of law or contract.
§13.17 Suspension or revocation of li-
cense or eligibility.
When collecting statutory penalties, forfeitures,
or debts for purposes of enforcement or compel-
ling compliance, the Administrator may suspend or
revoke licenses or other privileges for any inex-
cusable, prolonged or repeated failure of a debtor
to pay a claim. Additionally, the Administrator
may suspend or disqualify any contractor, lender,
broker, borrower, grantee or other debtor from
doing business with EPA or engaging in programs
EPA sponsors or funds if a debtor fails to pay its
debts to the Government within a reasonable time.
Debtors will be notified before such action is
taken and applicable suspension or debarment pro-
cedures will be used. The Administrator will re-
port the failure of any surety to honor its obliga-
tions to the Treasury Department for action under
6 U.S.C. 11.
§13.18 Installment payments.
(a) Whenever, feasible, and except as otherwise
provided by law, debts owed to the United States,
together with interest, penalty and administrative
costs, as required by §13.11, will be collected in
a single payment. However, where the Adminis-
trator determines that a debtor is financially unable
to pay the indebtedness in a single payment or that
an alternative payment mechanism is in the best
interest of the United States, the Administrator
may approve repayment of the debt in install-
ments. The debtor has the burden of establishing
that it is financially unable to pay the debt in a
single payment or that an alternative payment
mechanism is warranted. If the Administrator
agrees to accept payment by installments, the Ad-
ministrator may require a debtor to execute a writ-
ten agreement which specifies all the terms of the
repayment arrangement and which contains a pro-
vision accelerating the debt in the event of default.
The size and frequency of installment payments
will bear a reasonable relation to the size of the
debt and the debtor's ability to pay. The install-
ment payments will be sufficient in size and fre-
quency to liquidate the debt in not more than 3
years, unless the Administrator determines that a
longer period is required. Installment payments of
less than $50 per month generally will not be ac-
cepted, but may be accepted where the debtor's fi-
nancial or other circumstances justify. If the debt
is unsecured, the Administrator may require the
debtor to execute a confess-judgment note with a
tax carry-forward and a tax carry-back provision.
Where the Administrator secures a confess-judg-
ment note, the Administrator will provide the debt-
or a written explanation of the consequences of
the debtor's signing the note.
(b) If a debtor owes more than one debt and
designates how a voluntary installment payment is
to be applied among the debts, that designation
will be approved if the Administrator determines
that the designation is in the best interest of the
United States. If the debtor does not designate
how the payment is to be applied, the Adminis-
trator will apply the payment to the various debts
in accordance with the best interest of the United
States, paying special attention to applicable stat-
utes of limitations.
§13.19 Analysis of costs; automation;
prevention of overpayments, delin-
quencies or defaults.
(a) The Administrator may periodically compare
EPA's costs in handling debts with the amounts it
collects,
(b) The Administrator may periodically consider
the need, feasibility, and cost effectiveness of
automated debt collection operations.
(c) The Administrator may establish internal
controls to identify the causes of overpayments
and delinquencies and may issue procedures to
prevent future occurrences of the identified prob-
lems.
Sub pa it C—Administrative Offset
§ 13.20 Administrative offset of general
debts.
This subpart provides for EPA's collection of
debts by administrative offset under section 5 of
the Debt Collection Act of 1982 (31 U.S.C. 3716),
other statutory authorities and the common law. It
does not apply to offsets against employee salaries
covered by §§13.21, 13.22 and 13.23 of this sub-
part. EPA will collect debts by administrative off-
sets where it determines that such collections are
feasible and are not otherwise prohibited by statute
or contract.
EPA will decide, on a case-by-case basis,
whether collection by administrative offset is fea-
sible and that its use furthers and protects the in-
terest of the United States.
(a) Standards. (1) The Administrator collects
debts by administrative offset if—
(i) The debt is certain in amount;
(ii) Efforts to obtain direct payment from the
debtor have been, or would most likely be, unsuc-
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§13.20
cessful or the Administrator and the debtor agree
to the offset;
(iii) Offset is not expressly or implicitly prohib-
ited by statute, regulation or contract;
(iv) Offset is cost-effective or has significant
deterrent value;
(v) Offset does not substantially impair or de-
feat program objectives; and
(vi) Offset is best suited to further and protect
the Government's interest.
(2) The Administrator may, in determining the
method and amount of the offset, consider the fi-
nancial impact on the debtor.
(b) Interagency offset. The Administrator may
offset a debt owed to another Federal agency from
amounts due or payable by EPA to the debtor, or
may request another Federal agency to offset a
debt owed to EPA. The Administrator may request
the Internal Revenue Service to offset an overdue
debt from a Federal income tax refund due a debt-
or where reasonable attempts to obtain payment
have failed. Interagency offsets from employee
salaries will be made in accordance with the pro-
cedures contained in §§ 13.22 and 13.23.
(c) Multiple debts. Where moneys are available
for offset against multiple debts of a debtor, it will
be applied in accordance with the best interest of
the Government as determined by the Adminis-
trator on a case-by-case basis.
(d) Statutory bar to offset. Administrative offset
will not be made more than 10 years after the
Government's right to collect the debt first ac-
crued, unless facts material to the Government's
right to collect the debt were not known and could
not have been known through the exercise of rea-
sonable care by the officer responsible for discov-
ering or collecting the debt. For purposes of offset,
the right to collect a debt accrues when the appro-
priate EPA official determines that a debt exists
(e.g., contracting officer, grant award official,
etc.), when it is affirmed by an administrative ap-
peal or a court having jurisdiction, or when a debt-
or defaults on a payment agreement, whichever is
latest. An offset occurs when money payable to
the debtor is first withheld or when EPA requests
offset from money held by another agency.
(e) Pre-offset notice. Before initiating offset, the
Administrator sends the debtor written notice of:
(1) The basis for and the amount of the debt as
well as the Agency's intention to collect the debt
by offset if payment or satisfactory response has
not been received within 30 days of the notice;
(2) The debtor's right to submit an alternative
repayment schedule, to inspect and copy agency
records pertaining to the debt, to request review of
the determination of indebtedness or to apply for
waiver under any available statute or regulation;
and
(3) Applicable interest, penalty charges and ad-
ministrative costs.
(f) Alternative repayment. The Administrator
may, at the Administrator's discretion, enter into a
repayment agreement with the debtor in lieu of
offset. In deciding whether to accept payment of
the debt by an alternative repayment agreement,
the Administrator may consider such factors as the
amount of the debt, the length of the proposed re-
payment period, whether the debtor is willing to
sign a confess-judgment note, past Agency deal-
ings with the debtor, documentation submitted by
the debtor indicating that an offset will cause
undue financial hardship, and the debtor's finan-
cial ability to adhere to the terms of a repayment
agreement. The Administrator may require finan-
cial documentation from the debtor before consid-
ering the repayment arrangement.
(g) Review of administrative determination. (1)
A debt will not be offset while a debtor is seeking
either formal or informal review of the validity of
the debt under this section or under another stat-
ute, regulation or contract. However, interest, pen-
alty and administrative costs will continue to ac-
crue during this period, unless otherwise waived
by the Administrator. The Administrator may initi-
ate offset as soon as practical after completion of
review or after a debtor waives the opportunity to
request review.
(2) The Administrator may administratively off-
set a debt prior to the completion of a formal or
informal review where the determines that:
(i) Failure to take the offset would substantially
prejudice EPA's ability to collect the debt; and
(ii) The time before the first offset is to be
made does not reasonably permit the completion
of the review procedures. (Offsets taken prior to
completion of the review process will be followed
promptly by the completion of the process.
Amounts recovered by offset but later found not
to be owed will be refunded promptly.)
(3) The debtor must provide a written request
for review of the decision to offset the debt no
later than 15 days after the date of the notice of
the offset unless a different time is specifically
prescribed. The debtor's request must state the
basis for the request for review.
(4) The Administrator may grant an extension
of time for filing a request for review if the debtor
shows good cause for the late filing. A debtor who
fails timely to file or to request an extension
waives the right to review.
(5) The Administrator will issue, no later than
60 days after the filing of the request, a written
final decision based on the evidence, record and
applicable law.
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§13.22
§13.21 Employee salary offset—gen-
eral.
(a) Purpose. This section establishes EPA's
policies and procedures for recovery of debts
owed to the United States by installment collection
from the current pay account of an employee.
(b) Scope. The provisions of this section apply
to collection by salary offset under 5 U.S.C. 5514
of debts owed EPA and debts owed to other Fed-
eral agencies by EPA employees. This section
does not apply to debts owed EPA arising from
travel advances under 5 U.S.C. 5705, employee
training expenses under 5 U.S.C. 4108 and to
other debts where collection by salary offset is ex-
plicitly provided for or prohibited by another stat-
ute.
(c) References. The following statutes and regu-
lations apply to EPA's recovery of debts due the
United States by salary offset:
(1) 5 U.S.C. 5514, as amended, governing the
installment collection of debts;
(2) 31 U.S.C. 3716, governing the liquidation of
debts by administrative offset;
(3) 5 CFR part 550, subpart K, setting forth the
minimum requirements for executive agency regu-
lations on salary offset; and
(4) 4 CFR parts 101-105, the Federal Claims
Collection Standards.
§13.22 Salary offset when EPA is the
creditor agency.
(a) Entitlement to notice, hearing, written re-
sponse and decision. (1) Prior to initiating collec-
tion action through salary offset, EPA will first
provide the employee with the opportunity to pay
in full the amount owed, unless such notification
will compromise the Government's ultimate ability
to collect the debt.
(2) Except as provided in paragraph (b) of this
section, each employee from whom the Agency
proposes to collect a debt by salary offset under
this section is entitled to receive a written notice
as described in paragraph (c) of this section.
(3) Each employee owing a debt to the United
States which will be collected by salary offset is
entitled to request a hearing on the debt. This re-
quest must be filed as prescribed in paragraph (d)
of this section. The Agency will make appropriate
hearing arrangements which are consistent with
law and regulations. Where a hearing is held, the
employee is entitled to a written decision on the
following issues:
(i) The determination of the Agency concerning
the existence or amount of the debt; and
(ii) The repayment schedule, if it was not estab-
lished by written agreement between the employee
and the Agency.
(b) Exceptions to entitlement to notice, hearing,
written response and final decision. The proce-
dural requirements of paragraph (a) of this section
are not applicable to any adjustment of pay arising
out of an employee's election of coverage or a
change in coverage under a Federal benefits pro-
gram (such as health insurance) requiring periodic
deductions from pay, if the amount to be recov-
ered was accumulated over four pay periods or
less. However, if the amount to be recovered was
accumulated over more than four pay periods the
full procedures prescribed under paragraph (d) of
this section will be extended to the employee.
(c) Notification before deductions begin. Except
as provided in paragraph (b) of this section, de-
ductions will not be made unless the employee is
first provided with a minimum of 30 calendar days
written notice. Notice will be sent by certified
mail (return receipt requested), and must include
the following:
(1) The Agency's determination that a debt is
owed, including the origin, nature, and amount of
the debt;
(2) The Agency's intention to collect the debt
by means of deductions from the employee's cur-
rent disposable pay account;
(3) The amount, frequency, proposed beginning
date and duration of the intended deductions. (The
proposed beginning date for salary offset cannot
be earlier than 30 days after the date of notice, un-
less this would compromise the Government's ulti-
mate ability to resolve the debt);
(4) An explanation of the requirements concern-
ing interest, penalty and administrative costs;
(5) The employee's right to inspect and copy all
records relating to the debt or to request and re-
ceive a copy of such records;
(6) If not previously provided, the employee's
right to enter into a written agreement for a repay-
ment schedule differing from that proposed by the
Agency where the terms of the proposed repay-
ment schedule are acceptable to the Agency. (Such
an agreement must be in writing and signed by
both the employee and the appropriate EPA offi-
cial and will be included in the employee's per-
sonnel file and documented in the EPA payroll
system);
(7) The right to a hearing conducted by a hear-
ing official not under the control of the Adminis-
trator, if a request is filed;
(8) The method and time for requesting a hear-
ing;
(9) That the filing of a request for hearing with-
in 15 days of receipt of the original notification
will stay the assessment of interest, penalty and
administrative costs and the commencement of
collection proceedings;
(10) That a final decision on the hearing (if re-
quested) will be issued at the earliest practical
date, but no later than 60 days after the filing of
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§13.22
the request, unless the employee requests and the
hearing official grants a delay in the proceedings;
(11) That knowingly false or frivolous state-
ments, representations or evidence may subject the
employee to—
(i) Disciplinary procedures under 5 U.S.C. chap-
ter 75 or any other applicable statutes or regula-
tions;
(ii) Criminal penalties under 18 U.S.C. 286,
287, 1001 and 1002 or other applicable statutory
authority; or
(iii) Penalties under the False Claims Act, 31
U.S.C. 3729-3731, or any other applicable statu-
tory authority;
(12) Any other rights and remedies available
under statutes or regulations governing the pro-
gram for which the collection is being made; and
(13) That amounts paid or deducted for the
debt, except administrative costs and penalty
charges where the entire debt is not waived or ter-
minated, which are later waived or found not
owed to the United States will be promptly re-
funded to the employee.
(d) Request for hearing. An employee may re-
quest a hearing by filing a written request directly
with the Director, Financial Management Division
(PM-226F), U.S. Environmental Protection Agen-
cy, 401 M Street SW., Washington, DC 20460.
The request must state the bases upon which the
employee disputes the proposed collection of the
debt. The request must be signed by the employee
and be received by EPA within 15 days of the em-
ployee's receipt of the notification of proposed de-
ductions. The employee should submit in writing
all facts, evidence and witnesses which support
his/her position to the Director, Financial Manage-
ment Division, within 15 days of the date of the
request for a hearing. The Director, Financial
Management Division, will arrange for the serv-
ices of a hearing official not under the control of
the Administrator and will provide the hearing of-
ficial with all documents relating to the claim.
(e) Requests for hearing made after time ex-
pires. Late requests for a hearing may be accepted
if the employee can show that the delay in filing
the request for a hearing was due to circumstances
beyond the employee's control.
(f) Form of hearing, written response and final
decision. (1) Normally, a hearing will consist of
the hearing official making a decision based upon
a review of the claims file and any materials sub-
mitted by the debtor. However, in instances where
the hearing official determines that the validity of
the debt turns on an issue of veracity or credibility
which cannot be resolved through review of docu-
mentary evidence, the hearing official at his dis-
cretion may afford the debtor an opportunity for
an oral hearing. Such oral hearings will consist of
an informal conference before a hearing official in
which the employee and the Agency will be given
the opportunity to present evidence, witnesses and
argument. If desired, the employee may be rep-
resented by an individual of his/her choice. The
Agency shall maintain a summary record of oral
hearings provided under these procedures.
(2) Written decisions provided after a request
for hearing will, at a minimum, state the facts evi-
dencing the nature and origin of the alleged debt;
and the hearing official's analysis, findings and
conclusions.
(3) The decision of the hearing official is final
and binding on the parties.
(g) Request for waiver. In certain instances, an
employee may have a statutory right to request a
waiver of overpayment of pay or allowances, e.g.,
5 U.S.C. 5584 or 5 U.S.C. 5724(i). When an em-
ployee requests waiver consideration under a right
authorized by statute, further collection on the debt
will be suspended until a final administrative deci-
sion is made on the waiver request. However,
where it appears that the Government's ability to
recover the debt may be adversely affected be-
cause of the employee's resignation, termination or
other action, suspension of recovery is not re-
quired. During the period of the suspension, inter-
est, penalty charges and administrative costs will
not be assessed against the debt. The Agency will
not duplicate, for purposes of salary offset, any of
the procedures already provided the debtor under
a request for waiver.
(h) Method and source of collection. A debt will
be collected in a lump-sum or by installment de-
ductions at established pay intervals from an em-
ployee's current pay account, unless the employee
and the Agency agree to alternative arrangements
for payment. The alternative payment schedule
must be in writing, signed by both the employee
and the Administrator and will be documented in
the Agency's files.
(i) Limitation on amount of deduction. The size
and frequency of installment deductions generally
will bear a reasonable relation to the size of the
debt and the employee's ability to pay. However,
the amount deducted for any period may not ex-
ceed 15 percent of the disposable pay from which
the deduction is made, unless the employee has
agreed in writing to the deduction of a greater
amount. If possible, the installment payments will
be in amounts sufficient to liquidate the debt in
three years or less. Installment payments of less
than $25 normally will be accepted only in the
most unusual circumstances.
(j) Duration of deduction. If the employee is fi-
nancially unable to pay a debt in a lump-sum or
the amount of the debt exceeds 15 percent of dis-
posable pay, collection will be made in install-
ments. Installment deductions will be made over
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§13.22
the period of active duty or employment except as
provided in paragraph (a)(l) of this section.
(k) When deductions may begin. (1) Deductions
to liquidate an employee's debt will begin on the
date stated in the Agency's notice of intention to
collect from the employee's current pay unless the
debt has been repaid or the employee has filed a
timely request for hearing on issues for which a
hearing is appropriate.
(2) If the employee has filed a timely request
for hearing with the Agency, deductions will begin
after the hearing official has provided the em-
ployee with a final written decision indicating the
amount owed the Government. Following the deci-
sion by the hearing official, the employee will be
given 30 days to repay the amount owed prior to
collection through salary offset, unless otherwise
provided by the hearing official.
(1) Liquidation from final check. If the employee
retires, resigns, or the period of employment ends
before collection of the debt is completed, the re-
mainder of the debt will be offset from subsequent
payments of any nature due the employee (e.g.,
final salary payment, lump-sum leave, etc.).
(m) Recovery from other payments due a sepa-
rated employee. If the debt cannot be liquidated by
offset from any final payment due the employee
on the date of separation, EPA will liquidate the
debt, where appropriate, by administrative offset
from later payments of any kind due the former
employee (e.g., retirement pay). Such administra-
tive offset will be taken in accordance with the
procedures set forth in § 13.20.
(n) Employees who transfer to another Federal
agency. If an EPA employee transfers to another
Federal agency prior to repaying a debt owed to
EPA, the following action will be taken:
(1) The appropriate debt-claim form specified
by the Office of Personnel Management (OPM)
will be completed and certified to the new paying
office by EPA. EPA will certify: That the em-
ployee owes a debt; the amount and the basis for
the debt; the date on which payment is due; the
date the Government's rights to collect the debt
first accrued; and that EPA's regulations imple-
menting 5 U.S.C. 5514 have been approved by
OPM.
(2) The new paying agency will be advised of
the amount which has already been collected, the
number of installments and the commencement
date for the first installment, if other than the next
officially established pay period. EPA will also
identify to the new paying agency the actions it
has taken and the dates of such actions.
(3) EPA will place or will arrange to have
placed in the employee's official personnel file the
information required by paragraphs (n) (1) and (2)
of this section.
(4) Upon receipt of the official personnel file
from EPA, the new paying agency will resume
collection from the employee's current pay ac-
count and will notify both the employee and EPA
of the resumption.
(o) Interest, penalty and administrative cost.
EPA will assess interest and administrative costs
on debts collected under these procedures. The fol-
lowing guidelines apply to the assessment of these
costs on debts collected by salary offset:
(1) A processing and handling charge will be
assessed on debts collected through salary offset
under this section. Where offset begun prior to the
employee's receipt of the 30-day written notice of
the proposed offset, processing and handling costs
will only be assessed after the expiration of the
30-day notice period and after the completion of
any hearing requested under paragraph (d) of this
section or waiver consideration under paragraph
(g) of this section.
(2) Interest will be assessed on all debts not col-
lected within 30 days of either the date of the no-
tice where the employee has not requested a hear-
ing within the allotted time, completion of a hear-
ing pursuant to paragraph (d) of this section, or
completion of waiver consideration under para-
graph (g) of this section, whichever is later. Inter-
est will continue to accrue during the period of the
recovery.
(3) Deductions by salary offset normally begin
prior to the time for assessment of a penalty.
Therefore, a penalty charge will not be assessed
unless deductions occur more than 120 days from
the date of notice to the debtor and penalty assess-
ments have not been suspended because of waiver
consideration by EPA.
(p) Non-waiver of right by payment. An em-
ployee's payment under protest of all or any por-
tion of a debt does not waive any rights which the
employee may have under either these procedures
or any other provision of law.
(q) Refunds. EPA will promptly refund to the
employee amounts paid or deducted pursuant to
this section, the recovery of which is subsequently
waived or otherwise found not owing to the Unit-
ed States. Refunds do not bear interest unless spe-
cifically authorized by law.
(r) Time limit for commencing recovery by sal-
ary setoff. EPA will not initiate salary offset to
collect a debt more than 10 years after the Gov-
ernment's right to collect the debt first accrued,
unless facts material to the right to collect the debt
were not known and could not have been known
through the exercise of reasonable care by the
Government official responsible for discovering
and collecting such debts.
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§13.23
§13.23 Salary offset when EPA is not
the creditor agency.
The requirements below apply when EPA has
been requested to collect a debt owed by an EPA
employee to another Federal agency.
(a) Format for the request for recovery. (1) The
creditor agency must complete fully the appro-
priate claim form specified by OPM.
(2) The creditor agency must certify to EPA on
the debt claim form: The fact that the employee
owes a debt; the date that the debt first accrued;
and that the creditor agency's regulations imple-
menting 5 U.S.C. 5514 have been approved by
OPM and send it to the Director, Financial Man-
agement Division (PM-226F), U.S. Environmental
Protection Agency, 401 M Street SW., Washing-
ton, DC 20460.
(3) If the collection is to be made in install-
ments, the creditor agency must also advise EPA
of the number of installments to be collected, the
amount of each installment, and the commence-
ment date of the first installment, if a date other
than the next established pay period.
(4) Unless the employee has consented in writ-
ing to the salary deductions or signed a statement
acknowledging receipt of the required procedures
and this information is attached to the claim form,
the creditor agency must indicate the actions it
took under its procedures for salary offset and the
dates of such actions.
(b) Processing of the claim by EPA—(1) Incom-
plete claims. If EPA receives an improperly com-
pleted claim form, the claim form and all accom-
panying material will be returned to the requesting
(creditor) agency with notice that OPM procedures
must be followed and a properly completed claim
form must be received before any salary offset can
be taken. The notice should identify specifically
what is needed from the requesting agency for the
claim to be processed.
(2) Complete claims. If the claim procedures in
paragraph (a) of this section have been properly
completed, deduction will begin on the next estab-
lished pay period. EPA will not review the merits
of the creditor agency's determinations with re-
spect to the amount or validity of the debt as stat-
ed in the debt claim form. EPA will not assess a
handling or any other related charge to cover the
cost of its processing the claim.
(c) Employees separating from EPA before a
debt to another agency is collected—(1) Employ-
ees separating from Government service. If an em-
ployee begins separation action before EPA col-
lects the total debt due the creditor agency, the
following actions will be taken:
(i) To the extent possible, the balance owed the
creditor agency will be liquidated from subsequent
payments of any nature due the employee from
EPA in accordance with § 13.22(1);
(ii) If the total amount of the debt cannot be re-
covered, EPA will certify to the creditor agency
and the employee the total amount of EPA's col-
lection; and
(iii) If EPA is aware that the employee is enti-
tled to payments from the Civil Service Retire-
ment and Disability Fund or other similar pay-
ments, it will forward a copy of the claim form to
the agency responsible for making such payments
as notice that a debt is outstanding. EPA will also
send a copy of the claim form to the creditor
agency so that it can file a certified claim against
the payments.
(2) Employees who transfer to another Federal
agency. If an EPA employee transfers to another
Federal agency before EPA collects the total
amount due the creditor agency, the following ac-
tions will be taken:
(i) EPA will certify the total amount of the col-
lection made on the debt; and
(ii) The employee's official personnel folder
will be sent to the new paying agency. (It is the
responsibility of the creditor agency to ensure that
the collection is resumed by the new paying agen-
cy.)
Subpart D—Compromise of Debts
§13.24 General.
EPA may compromise claims for money or
property where the claim, exclusive of interest,
penalty and administrative costs, does not exceed
$20,000. Where the claim exceeds $20,000, the
authority to accept the compromise rests solely
with DOJ. The Administrator may reject an offer
of compromise in any amount. Where the claim
exceeds $20,000 and EPA recommends acceptance
of a compromise offer, it will refer the claim with
its recommendation to DOJ for approval. The re-
ferral will be in the form of the Claims Collection
Litigation Report (CCLR) and will outline the
basis for EPA's recommendation. EPA refers com-
promise offers for claims in excess of $100,000 to
the Commercial Litigation Branch, Civil Division,
Department of Justice, Washington, DC 20530,
unless otherwise provided by Department of Jus-
tice delegations or procedures. EPA refers offers
of compromise for claims of $20,000 to $100,000
to the United States Attorney in whose judicial
district the debtor can be found. If the Adminis-
trator has a debtor's firm written offer for com-
promise which is substantial in amount but the
Administrator is uncertain as to whether the offer
should be accepted, he may refer the offer and the
supporting data to DOJ or GAO for action.
§ 13.25 Standards for compromise.
(a) EPA may compromise a claim pursuant to
this section if EPA cannot collect the full amount
10
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§13.29
because the debtor does not have the financial
ability to pay the full amount of the debt within
a reasonable time, or the debtor refuses to pay the
claim in full and the Government does not have
the ability to enforce collection in full within a
reasonable time by enforced collection proceed-
ings. In evaluating the acceptability of the offer,
the Administrator may consider, among other fac-
tors, the following:
(1) Individual debtors, (i) Age and health of the
debtor;
(ii) Present and potential income;
(iii) Inheritance prospects;
(iv) The possibility that assets have been con-
cealed or improperly transferred by the debtor;
(v) The availability of assets or income which
may be realized by enforced collection proceed-
ings; or
(vi) The applicable exemptions available to the
debtor under State and Federal law in determining
the Government's ability to enforce collection.
(2) Municipal and quasi-municipal debtors, (i)
The size of the municipality or quasi-municipal
entity;
(ii) The availability of current and future re-
sources sufficient to pay the debt (e.g., bonding
authority, rate adjustment authority, or taxing au-
thority); or
(iii) The ratio of liabilities (both short and long
term) to assets.
(3) Commercial debtors, (i) Ratio of assets to li-
abilities;
(ii) Prospects of future income or losses; or
(iii) The availability of assets or income which
may be realized by enforced collection proceed-
ings.
(b) EPA may compromise a claim, or rec-
ommend acceptance of a compromise to DOJ,
where there is substantial doubt concerning the
Government's ability to prove its case in court for
the full amount of the claim, either because of the
legal issues involved or a bona fide dispute as to
the facts. The amount accepted in compromise in
such cases will fairly reflect the probability of pre-
vailing on the legal issues involved, considering
fully the availability of witnesses and other evi-
dentiary data required to support the Government's
claim. In determining the litigative risks involved,
EPA will give proportionate weight to the likely
amount of court costs and attorney fees the Gov-
ernment may incur if it is unsuccessful in litiga-
tion.
(c) EPA may compromise a claim, or rec-
ommend acceptance of a compromise to DOJ, if
the cost of collection does not justify the enforced
collection of the full amount of the debt. The
amount accepted in compromise in such cases may
reflect an appropriate discount for the administra-
tive and litigative costs of collection, taking into
consideration the time it will take to effect collec-
tion. Costs of collection may be a substantial fac-
tor in the settlement of small claims, but normally
will not carry great weight in the settlement of
large claims. In determining whether the cost of
collection justifies enforced collection of the full
amount, EPA may consider the positive effect that
enforced collection of the claim may have on the
collection of other similar claims.
(d) Statutory penalties, forfeitures or debts es-
tablished as an aid to enforcement and to compel
compliance may be compromised where the Ad-
ministrator determines that the Agency's enforce-
ment policy, in terms of deterrence and securing
compliance (both present and future), will be ade-
quately served by accepting the offer.
of compromised
§ 13.26 Payment
claims.
The Administrator normally will not approve a
debtor's request to pay a compromised claim in
installments. However, where the Administrator
determines that payment of a compromise by in-
stallments is necessary to effect collection, a debt-
or's request to pay in installments may be ap-
proved. Normally, where installment repayment is
approved, the debtor will be required to execute a
confess-judgment agreement which accelerates
payment of the balance due upon default.
§ 13.27 Joint and several liability.
When two or more debtors are jointly and sev-
erally liable, collection action will not be withheld
against one debtor until the other or others pay
their proportionate share. The amount of a com-
promise with one debtor is not precedent in deter-
mining compromises from other debtors who have
been determined to be jointly and severally liable
on the claim.
§13.28 Execution of releases.
Upon receipt of full payment of a claim or the
amount compromised, EPA will prepare and exe-
cute a release on behalf of the United States. The
release will include a provision which voids the
release if it was procured by fraud, misrepresenta-
tion, a false claim or by mutual mistake of fact.
Subpart E—Suspension of
Collection Action
§ 13.29 Suspension—general.
The Administrator may suspend the Agency's
collection actions on a debt where the outstanding
debt principal does not exceed $20,000, the Gov-
ernment cannot presently collect or enforce collec-
tion of any significant sum from the debtor, the
prospects of future collection justify retention of
11
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§13.30
the debt for periodic review and there is no risk
of expiration of the statute of limitations during
the period of suspension. Additionally, the Admin-
istrator may waive the assessment of interest, pen-
alty charges and administrative costs during the
period of the suspension. Suspension will be for
an established time period and generally will be
reviewed at least every six months to ensure the
continued propriety of the suspension. DOJ ap-
proval is required to suspend debts exceeding
$20,000. Unless otherwise provided by DOJ dele-
gations or procedures, the Administrator refers re-
quests for suspension of debts of $20,000 to
$100,000 to the United States Attorney in whose
district the debtor resides. Debts exceeding
$100,000 are referred to the Commercial Litigation
Branch, Civil Division, Department of Justice, for
approval.
§ 13.30 Standards for suspension.
(a) Inability to locate debtor. The Administrator
may suspend collection on a debt where he deter-
mines that the debtor cannot be located presently
but that there is a reasonable belief that the debtor
can be located in the future.
(b) Financial condition of debtor. The Adminis-
trator may suspend collection action on a claim
when the debtor owns no substantial equity in real
or personal property and is unable to make pay-
ment on the claim or effect a compromise but the
debtor's future financial prospects justify retention
of the claim for periodic review, provided that:
(1) The applicable statute of limitations will not
expire during the period of the suspension, can be
tolled or has started running anew;
(2) Future collection can be effected by offset,
notwithstanding the 10-year statute of limitations
for administrative offsets; or
(3) The debtor agrees to pay interest on the debt
and suspension is likely to enhance the debtor's
ability to fully pay the principal amount of the
debt with interest at a later date.
(c) Request for waiver or administrative re-
view—mandatory. The Administrator will suspend
collection activity where a statute provides for
mandatory waiver consideration or administrative
review prior to agency collection of a debt. The
Administrator will suspend EPA's collection ac-
tions during the period provided for the debtor to
request review or waiver and during the period of
the Agency's evaluation of the request.
(d) Request for waiver or administrative re-
view—permissive. The Administrator may suspend
collection activities on debts of $20,000 or less
during the pendency of a permissive waiver or ad-
ministrative review where he determines that:
(1) There is a reasonable possibility that waiver
will be granted and the debtor may be found not
owing the debt (in whole or in part);
(2) The Government's interest is protected, if
suspension is granted, by the reasonable assurance
that the debt can be recovered if the debtor does
not prevail; or
(3) Collection of the debt will cause undue
hardship to the debtor.
(e) Refund barred by statute or regulation. The
Administrator will ordinarily suspend collection
action during the pendency of his consideration of
a waiver request or administrative review where
statute and regulation preclude refund of amounts
collected by the Agency should the debtor prevail.
The Administrator may decline to suspend collec-
tion where he determines that the request for
waiver or administrative review is frivolous or was
made primarily to delay collection.
Subpart F—Termination of Debts
§13.31 Termination—general.
The Administrator may terminate collection ac-
tions and write-off debts, including accrued inter-
est, penalty and administrative costs, where the
debt principal does not exceed $20,000. If the debt
exceeds $20,000, EPA obtains the approval of
DOJ in order to terminate further collection ac-
tions. Unless otherwise provided for by DOJ regu-
lations or procedures, requests to terminate collec-
tion on debts in excess of $100,000 are referred to
the Commercial Litigation Branch, Civil Division,
Department of Justice, for approval. Debts in ex-
cess of $20,000 but $100,000 or less are referred
to the United States Attorney in whose judicial
district the debtor can be found.
§ 13.32 Standards for termination.
A debt may be terminated where the Adminis-
trator determines that:
(a) The Government cannot collect or enforce
collection of any significant sum from the debtor,
having due regard for available judicial remedies,
the debtor's ability to pay, and the exemptions
available to the debtor under State and Federal
law;
(b) The debtor cannot be located, there is no se-
curity remaining to be liquidated, the applicable
statute of limitations has expired, and the pros-
pects of collecting by offset are too remote to jus-
tify retention of the claim;
(c) The cost of further collection action is likely
to exceed the amount recoverable;
(d) The claim is determined to be legally with-
out merit; or
(e) The evidence necessary to prove the claim
cannot be produced or the necessary witnesses are
unavailable and efforts to induce voluntary pay-
ment have failed.
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§13.37
Sub pa it G—Referrals
§ 13.33 Referrals to the Department of
Justice.
(a) Prompt referral. The Administrator refers to
DOJ for litigation all claims on which aggressive
collection actions have been taken but which could
not be collected, compromised, suspended or ter-
minated. Referrals are made as early as possible,
consistent with aggressive agency collection ac-
tion, and within the period for bringing a timely
suit against the debtor.
(1) Unless otherwise provided by DOJ regula-
tions or procedures, EPA refers for litigation debts
of more than $100,000 to the Commercial Litiga-
tion Branch, Civil Division, Department of Justice,
Washington, DC 20530.
(2) Unless otherwise provided by DOJ regula-
tions or procedures, EPA refers for litigation debts
of $100,000 or less to the United States Attorney
in whose judicial district the debtor can be found.
(b) Claims Collection Litigation Report (CCLR).
Unless an exception has been granted by DOJ, the
CCLR is used for referrals of all administratively
uncollectible claims to DOJ and is used to refer all
offers of compromise.
Supbart H—Referral of Debts to IRS
for Tax Refund Offset
Source: 59 FR 651,
noted.
Jan. 5, 1994, unless otherwise
§ 13.34 Purpose.
This subpart establishes procedures for the En-
vironmental Protection Agency (EPA) to refer
past-due debts to the Internal Revenue Service
(IRS) for offset against the income tax refunds of
persons owing debts to EPA. It specifies the
Agency procedures and the rights of the debtor ap-
plicable to claims for the payment of debts owed
to EPA.
§ 13.35 Applicability and scope.
(a) This subpart implements 31 U.S.C. 3720A,
which authorizes the IRS to reduce a tax refund
by the amount of a past-due legally enforceable
debt owed to the United States.
(b) For purposes of this section, a past-due le-
gally enforceable debt referable to the IRS is a
debt which is owed to the United States and:
(1) Except in the case of a judgment debt, has
been delinquent for at least three months but has
not been delinquent for more than ten years at the
time the offset is made;
(2) Cannot be currently collected pursuant to the
salary offset provisions of 5 U.S.C. 5514(a)(l);
(3) Is ineligible for administrative offset under
31 U.S.C. 3716(a) by reason of 31 U.S.C.
3716(c)(2) or cannot be collected by administra-
tive offset under 31 U.S.C. 3716(a) by the Agency
against amounts payable to or on behalf of the
debtor by or on behalf of the Agency;
(4) With respect to which EPA has given the
taxpayer at least 60 days from the date of notifica-
tion to present evidence that all or part of the debt
is not past-due or not legally enforceable, has con-
sidered evidence presented by such taxpayer, if
any, and has determined that an amount of such
debt is past-due and legally enforceable;
(5) Has been disclosed by EPA to a consumer
reporting agency as authorized by 31 U.S.C.
371 l(f), unless a consumer reporting agency
would be prohibited from using such information
by 15 U.S.C. 1681c, or unless the amount of the
debt does not exceed $100.00;
(6) With respect to which EPA has notified or
has made a reasonable attempt to notify the tax-
payer that the debt is past-due and, unless repaid
within 60 days thereafter, the debt will be referred
to the IRS for offset against any overpayment of
tax;
(7) Is at least $25.00; and
(8) All other requirements of 31 U.S.C. 3720A
and the Department of the Treasury regulations at
26 CFR 301.6402-6 relating to the eligibility of a
debt for tax return offset have been satisfied.
§ 13.36 Administrative charges.
In accordance with §13.11, all administrative
charges incurred in connection with the referral of
a debt to the IRS shall be assessed on the debt and
thus increase the amount of the offset.
§ 13.37 Notice requirement before off-
set.
A request for reduction of an IRS tax refund
will be made only after EPA makes a determina-
tion that an amount is owed and past-due and pro-
vides the debtor with 60 days written notice.
EPA's notice of intention to collect by IRS tax re-
fund offset (Notice of Intent) will state:
(a) The amount of the debt;
(b) That unless the debt is repaid within 60 days
from the date of EPA's Notice of Intent, EPA in-
tends to collect the debt by requesting the IRS to
reduce any amounts payable to the debtor as re-
funds of Federal taxes paid by an amount equal to
the amount of the debt and all accumulated inter-
est and other charges;
(c) That the debtor has a right to present evi-
dence that all or part of the debt is not past-due
or not legally enforceable; and
(d) A mailing address for forwarding any writ-
ten correspondence and a contact name and phone
number for any questions.
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§13.38
§ 13.38 Review within the Agency.
(a) Notification by debtor. A debtor who re-
ceives a Notice of Intent has the right to present
evidence that all or part of the debt is not past-
due or not legally enforceable. To exercise this
right, the debtor must:
(1) Send a written request for a review of the
evidence to the address provided in the notice;
(2) State in the request the amount disputed and
the reasons why the debtor believes that the debt
is not past-due or is not legally enforceable; and
(3) Include in the request any documents which
the debtor wishes to be considered or state that ad-
ditional information will be submitted within the
remainder of the 60-day period.
(b) Submission of evidence. The debtor may
submit evidence showing that all or part of the
debt is not past-due or not legally enforceable
along with the notification required by paragraph
(a) of this section. Failure to submit the notifica-
tion and evidence within 60 days will result in an
automatic referral of the debt to the IRS without
further action by EPA.
(c) Review of the evidence. EPA will consider
all available evidence related to the debt. Within
30 days, if feasible, EPA will notify the debtor
whether EPA has sustained, amended, or cancelled
its determination that the debt is past-due and le-
gally enforceable.
§ 13.39 Agency determination.
(a) Following review of the evidence, EPA will
issue a written decision.
(b) If EPA either sustains or amends its deter-
mination, it shall notify the debtor of its intent to
refer the debt to the IRS for offset against the
debtor's Federal income tax refund. If EPA can-
cels its original determination, the debt will not be
referred to IRS.
§ 13.40 Stay of offset.
If the debtor timely notifies the EPA that he or
she is exercising the right described in § 13.38(a)
and timely submits evidence in accordance with
§ 13.38(b), any notice to the IRS will be stayed
until the issuance of a written decision which sus-
tains or amends its original determination.
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PART 14—EMPLOYEE PERSONAL
PROPERTY CLAIMS
Sec.
14.1 Scope and purpose.
14.2 Definitions.
14.3 Incident to service.
14.4 Reasonable and proper.
14.5 Who may file a claim.
14.6 Time limits for filing a claim.
14.7 Where to file a claim.
14.8 Investigation of claims.
14.9 Approval and payment of claims.
14.10 Procedures for reconsideration.
14.11 Principal types of allowable claims.
14.12 Principal types of unallowable claims.
14.13 Items fraudulently claimed.
14.14 Computation of award.
AUTHORITY: Military Personnel and Civilian Employ-
ees' Claims Act of 1964, as amended (31 U.S.C. 3721).
SOURCE: 51 FR 24146, July 2, 1986, unless otherwise
noted.
§ 14.1 Scope and purpose.
This part prescribes regulations for the Military
Personnel and Civilian Employees' Claims Act of
1964 (the Act), 31 U.S.C. 3721. The Act allows
the Administrator of the U.S. Environmental Pro-
tection Agency (EPA) to settle and pay claims of
EPA employees for damage to or loss of their per-
sonal property which was incident to service. A
claim under the Act is allowed only where the
claim is substantiated and the Administrator deter-
mines that possession of the property was reason-
able or proper under the circumstances existing at
the time and place of the loss and no part of the
loss was caused by any negligent or wrongful act
or omission of the employee or his/her agent.
§14.2 Definitions.
As used in this part:
(a) EPA Claims Officer is the Agency official
delegated the responsibility by the Administrator
to carry out the provisions of the Act.
(b) Claim means a demand for payment by an
employee or his/her representative for the value or
the repair cost of an item of personal property
damaged, lost or destroyed as an incident to gov-
ernment service.
(c) Employee means a person appointed to a po-
sition with EPA.
(d) Settle means the act of considering,
ascertaining, adjusting, determining or otherwise
resolving a claim.
(e) Accrual date means the date of the incident
causing the loss or damage or the date on which
the loss or damage should have been discovered
by the employee through the exercise of reason-
able care.
(f) Depreciation is the reduction in value of an
item caused by the elapse of time between the
date of acquisition and the date of loss or damage.
§14.3 Incident to service.
In order for a claim to be allowed under this
part, the EPA Claims Officer must determine that
the item of personal property, at the time of dam-
age or loss, was used by the employee as an inci-
dent to government service. An item is incident to
service when possession of the item by the em-
ployee had substantial relationship to the employ-
ee's performance of duty. Whether an item is inci-
dent to service is determined by the facts of each
claim. The employee has the burden of showing
that the item was incident to his/her governmental
service.
§14.4 Reasonable and proper.
EPA does not insure its employees from every
loss or damage to personal property they may sus-
tain. In order for a claim to be allowed, the item
must not only have been incident to service, it
must also have been reasonable and proper for the
employee to possess the item at the time and place
of its loss or damage. Generally, the possession of
an item is reasonable and proper when the item is
of a type and quantity which EPA reasonably ex-
pected its employees to possess at the time and
place of the loss or damage. Consequently, items
which are exceptionally expensive, excessive
quantities of otherwise allowable items, personal
items which are used in place of items usually
provided to employees by EPA or items which are
primarily of aesthetic value are not considered rea-
sonable or proper items and are unallowable.
§ 14.5 Who may file a claim.
A claim may be filed by an employee or by his/
her authorized agent or legal representative. If a
claim is otherwise allowable under this part, a
claim can be filed by a surviving spouse, child,
parent, brother or sister of a deceased employee.
§ 14.6 Time limits for filing a claim.
A claim under this part is considered by the
EPA Claims Officer only if it is in writing and re-
ceived within two years after the claim accrues.
The EPA Claims Officer may consider a claim not
filed within this period when the claim accrued
during a period of armed conflict and the require-
ments of 31 U.S.C. 3721(g) are met.
§ 14.7 Where to file a claim.
An employee or his/her representative may file
a claim with his/her Administrative Office or the
Safety Office for the facility. The employee should
complete and submit to the Administrative Office
or the Safety Office a completed EPA Form 3370-
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§14.8
1, "Employee Claim for Loss of or Damage to
Personal Property." That Office then forwards the
form and any other relevant information to the
EPA Claims Officer, Office of General Counsel
(LE-132G), 401 M Street SW., Washington, DC
20460.
§ 14.8 Investigation of claims.
The EPA Claims Officer investigates claims
filed under this part. The EPA Claims Officer may
request additional documentation from an em-
ployee (e.g., repair estimates and receipts), inter-
view witnesses, and conduct any further investiga-
tion he believes is warranted by the facts of the
claim.
§ 14.9 Approval and payment of claims.
(a) EPA's approval and payment of a claim is
limited by the Act to $25,000. The EPA Claims
Officer considers, adjusts, determines, com-
promises and settles all claims filed under this
part. The decision of the EPA Claims Officer is
final unless reconsideration under § 14.10 is grant-
ed.
(b) The EPA Claims Officer will approve and
pay claims filed for a deceased employee by per-
sons specified in § 14.5 in the following order:
(1) The spouse's claim.
(2) A child's claim.
(3) A parent's claim.
(4) A brother's or sister's claim.
§14.10 Procedures for reconsideration.
The EPA Claims Officer, at his discretion, may
reconsider a decision when the employee estab-
lishes that an error was made in the computation
of the award or that evidence or material facts
were unavailable to the employee at the time of
the filing of the claim and the failure to provide
the information was not the result of the employ-
ee's lack of care. An employee seeking reconsider-
ation of a decision must file, within 30 days of the
date of the decision, a written request with the
EPA Claims Officer for reconsideration. The re-
quest for reconsideration must specify, where ap-
plicable, the error, the evidence or material facts
not previously considered by the EPA Claims Of-
ficer and the reason why the employee believes
that the evidence or facts previously were not
available.
§14.11 Principal types of allowable
claims.
(a) General. A claim under this part is allowed
for tangible personal property of a type and quan-
tity that was reasonable and proper for the em-
ployee to possess under the circumstances at the
time of the loss or damage. In evaluating whether
a claim is allowable, the EPA Claims Officer may
consider such factors as: The employee's use of
the item; whether EPA generally is aware that
such items are used by its employees; or whether
the loss was caused by a failure of EPA to provide
adequate protection against the loss.
(b) Examples of claims which are allowable.
Claims which are ordinarily allowed include loss
or damage which occurred:
(1) In a place officially designated for storage
of property such as a warehouse, office, garage, or
other storage place;
(2) In a marine, rail, aircraft, or other common
disaster or natural disaster such as a fire, flood, or
hurricane;
(3) When the personal property was subjected to
an extraordinary risk in the employee's perform-
ance of duty, such as in connection with an emer-
gency situation, a civil disturbance, common or
natural disaster, or during efforts to save govern-
ment property or human life;
(4) When the property was used for the benefit
of the government at the specific direction of a su-
pervisor;
(5) When the property was money or other
valuables deposited with an authorized government
agent for safekeeping; and
(6) When the property was a vehicle which was
subjected to an extraordinary risk in the employ-
ee's performance of duty and the use of the vehi-
cle was at the specific direction of the employee's
supervisor.
(c) Claims for articles of clothing. Claims for
loss or damage to clothing and accessories worn
by an employee may be allowed where:
(1) The damage or loss occurred during the em-
ployee's performance of official duty in an un-
usual or extraordinary risk situation;
(2) The loss or damage occurred during the em-
ployee's response to an emergency situation, to a
natural disaster such as fire, flood, hurricane, or to
a man-made disaster such as a chemical spill;
(3) The loss or damage was caused by faulty or
defective equipment or furniture maintained by
EPA; or
(4) The item was stolen even though the em-
ployee took reasonable precautions to protect the
item from theft.
(d) Claims for loss or damage to household
items. (1) Claims for damages to household goods
may be allowed where:
(i) The loss or damages occurred while the
goods were being shipped pursuant to an EPA au-
thorized change in duty station;
(ii) The employee filed a claim for the damages
with the appropriate carrier; and
(iii) The employee substantiates that he/she has
suffered a loss in excess of the amount paid by the
carrier.
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§14.14
(2) Where a carrier has refused to make an
award to an employee because of his/her failure to
comply with the carrier's claims procedures, any
award by EPA will be reduced by the maximum
amount payable for the item by the carrier under
its contract of shipment. Where an employee fails
to notify the carrier of damages or loss, either at
the time of delivery of the household goods or
within a reasonable time after discovery, any
award by EPA will be reduced by the amount of
the carrier's maximum contractual liability for the
damage or loss. The employee has the burden of
proving his/her entitlement to reimbursement from
EPA for amounts in excess of that allowed by the
carrier.
§14.12 Principal types of unallowable
claims.
Claims that ordinarily will not be allowed in-
clude:
(a) Loss or damage totaling less than $25;
(b) Money or currency, except when deposited
with an authorized government agency for safe-
keeping;
(c) Loss or damage to an item of extraordinary
value or to an antique where the item was shipped
with household goods, unless the employee filed a
valid appraisal or authentication with the carrier
prior to shipment of the item;
(d) Loss of bankbooks, checks, notes, stock cer-
tifications, money orders, or travelers checks;
(e) Property owned by the United States unless
the employee is financially responsible for it to
another government agency;
(f) Claims for loss or damage to a bicycle or a
private motor vehicle, unless allowable under
(g) Losses of insurers or subrogees;
(h) Losses recoverable from insurers or carriers;
(i) Losses recovered or recoverable pursuant to
contract;
(j) Claims for damage or loss caused, in whole
or in part, by the negligent or wrongful acts of the
employee or his/her agent;
(k) Property used for personal business or prof-
it;
(1) Theft from the possession of the employee
unless the employee took reasonable precautions
to protect the item from theft;
(m) Property acquired, possessed or transported
in violation of law or regulations;
(n) Unserviceable property; or
(o) Damage or loss to an item during shipment
of household goods where the damage or loss was
caused by the employee's negligence in packing
the item.
§ 14.13 Items fraudulently claimed.
Where the EPA Claims Officer determines that
an employee has intentionally misrepresented the
cost, condition, cost of repair or a material fact
concerning a claim, he/she may, at his discretion,
deny the entire amount claimed for the item. Fur-
ther, where the EPA Claims Officer determines
that the employee intentionally has materially mis-
represented the costs, conditions or nature of re-
pairs of the claim, he will refer it to appropriate
officials (e.g., Inspector General, the employee's
supervisor, etc.) for action.
§14.14 Computation of award.
(a) The amount awarded on any item may not
exceed its adjusted cost. Adjusted cost is either the
purchase price of the item or its value at the time
of acquisition, less appropriate depreciation. The
amount normally payable for property damaged
beyond economical repair is its depreciated value
immediately before the loss or damage, less any
salvage value. If the cost of repair is less than the
depreciated value, it will be considered to be eco-
nomically repairable and only the cost of repair
will be allowable.
(b) Notwithstanding a contract to the contrary,
the representative of an employee is limited by 31
U.S.C. 3721(i) to receipt of not more than 10 per-
cent of the amount of an award under this part for
services related to the claim. A person violating
this paragraph is subject to a fine of not more than
$1,000. 31 U.S.C. 3721(i).
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PART 16—IMPLEMENTATION OF
PRIVACY ACT OF 1974
Sec.
16.1 Purpose and scope.
16.2 Definitions.
16.3 Procedures for requests pertaining to individual
records in a record system.
16.4 Times, places, and requirements for identification
of individuals making requests.
16.5 Disclosure of requested information to individuals.
16.6 Special procedures: Medical records.
16.7 Request for correction or amendment of record.
16.8 Initial determination on request for correction or
amendment of record.
16.9 Appeal of initial adverse agency determination on
request for correction or amendment.
16.10 Disclosure of record to person other than the indi-
vidual to whom it pertains.
16.11 Fees.
16.12 Penalties.
16.13 General exemptions.
16.14 Specific exemptions.
SOURCE: 40 FR 53582, Nov. 19, 1975, unless otherwise
noted.
§16.1 Purpose and scope.
(a) This part sets forth the Environmental Pro-
tection Agency procedures under the Privacy Act
of 1974 as required by 5 U.S.C. 552a(f).
(b) These procedures describe how an individual
may request notification of whether EPA main-
tains a record pertaining to him or her in any of
its systems of records, request access to the record
or to an accounting of its disclosure, request that
the record be amended or corrected, and appeal an
initial adverse determination concerning any such
request.
(c) These procedures apply only to requests by
individuals and only to records maintained by
EPA, excluding those systems specifically exempt
under §§ 16.13 and 16.14 and those determined as
government-wide and published by the Civil Serv-
ice Commission in 5 CFR parts 293 and 297.
§16.2 Definitions.
As used in this part:
(a) The terms individual, maintain, record, sys-
tem of records, and routine use shall have the
meaning given them by 5 U.S.C. 552a (a)(2),
(a)(3), (a)(4), (a)(5) and (a)(7), respectively.
(b) EPA means the Environmental Protection
Agency.
(c) Working days means calendar days exclud-
ing Saturdays, Sundays, and legal public holidays.
§16.3 Procedures for requests pertain-
ing to individual records in a
record system.
Any individual who wishes to have EPA inform
him or her whether a system of records maintained
by EPA contains any record pertaining to him or
her which is retrieved by name or personal identi-
fier, or who wishes to request access to any such
record, shall submit a written request in accord-
ance with the instructions set forth in EPA's an-
nual notice of systems for that system of records.
This request shall include:
(a) The name of the individual making the re-
quest;
(b) The name of the system of records (as set
forth in the EPA notice of systems) to which the
request relates;
(c) Any other information which the system no-
tice indicates should be included; and
(d) If the request is for access, a statement as
to whether a personal inspection or a copy by mail
is desired.
§16.4 Times, places, and requirements
for identification of individuals
making requests.
(a) If an individual submitting a request for ac-
cess under § 16.3 has asked that EPA authorize a
personal inspection of records, and EPA has grant-
ed the request, he or she may present himself or
herself at the time and place specified in EPA's
response or arrange another time with the appro-
priate agency official.
(b) Prior to inspection of records, an individual
shall present sufficient identification (e.g., driver's
license, employee identification card, social secu-
rity card, credit card) to establish that he or she
is the individual to whom the records pertain. An
individual who is unable to provide such identi-
fication shall complete and sign, in the presence of
an agency official, a statement declaring his or her
identity and stipulating that he or she understands
it is a misdemeanor punishable by fine up to
$5,000 to knowingly and willfully seek or obtain
access to records about another individual under
false pretenses.
(c) If an individual, having requested personal
inspection of his or her records, wishes to have
another person accompany him or her during in-
spection, he or she shall submit a written state-
ment authorizing disclosure in the presence of the
other person(s).
(d) An individual who has made a personal in-
spection of records may then request copies of
those records. Such requests may be granted, but
fees may be charged in accordance with §16.11.
(e) If an individual submitting a request under
§ 16.3 wishes to have copies furnished by mail, he
or she must include with the request sufficient
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§16.5
data to allow EPA to verify his or her identity.
Should sensitivity of the records warrant it, EPA
may require a requester to submit a signed and no-
tarized statement indicating that he or she is the
individual to whom the records pertain and that he
or she understands it is a misdemeanor punishable
by fine up to $5,000 to knowingly and willfully
seek or obtain access to records about another in-
dividual under false pretenses. Such mail requests
may be granted, but fees may be charged in ac-
cordance with § 16.11.
(f) No verification of identity will be required
where the records sought are publicly available
under the Freedom of Information Act, as EPA
procedures under 40 CFR part 2 will then apply.
§16.5 Disclosure of requested informa-
tion to individuals.
(a) Each request received will be acted upon
promptly.
(b) Within 10 working days of receipt of a re-
quest, the system manager shall acknowledge the
request. Whenever practicable, the acknowledg-
ment will indicate whether or not access will be
granted and, if so, when and where. When access
is to be granted, it shall be provided within 30
working days of first receipt. If the agency is un-
able to meet this deadline, the records system
manager shall so inform the requester stating rea-
sons for the delay and an estimate of when access
will be granted.
(c) If a request pursuant to § 16.3 for access to
a record is in a system of records which is ex-
empted, the records system manager will deter-
mine whether the information will nonetheless be
made available. If the determination is to deny ac-
cess, the reason for denial and the appeal proce-
dure will be given to the requester.
(d) Any person whose request is initially denied
may appeal that denial to the Privacy Act Officer,
who shall make an appeal determination within 10
working days.
(e) If the appeal under paragraph (d) of this sec-
tion is denied, the requester may bring a civil ac-
tion under 5 U.S.C. 552a(g) to seek review of the
denial.
§16.6 Special procedures: Medical rec-
ords.
Should EPA receive a request for access to
medical records (including psychological records)
disclosure of which the system manager deter-
mines would be harmful to the individual to whom
they relate, EPA may refuse to disclose the
records directly to the individual and instead offer
to transmit them to a physician designated by the
individual.
§16.7 Request for correction or
amendment of record.
(a) An individual may request correction or
amendment of any record pertaining to him or her
in a system of records maintained by EPA by sub-
mitting to the system manager, in writing, the fol-
lowing:
(1) The name of the individual making the re-
quest;
(2) The name of the system, as described in the
notice of systems;
(3) A description of the nature and substance of
the correction or amendment request; and
(4) Any additional information specified in the
system notice.
(b) Any person submitting a request under this
section shall include sufficient information in sup-
port of that request to allow EPA to apply the
standards set forth in 5 U.S.C. 552a (e)(l) and
(e)(5).
(c) Any person whose request is denied may ap-
peal that denial to the Privacy Act Officer.
(d) In the event that appeal is denied, the re-
quester may bring a civil action to seek review of
the denial, under 5 U.S.C. 552a(g).
§16.8 Initial determination on request
for correction or amendment of
record.
(a) Within 10 working days of receipt of a re-
quest for amendment or correction, the system
manager shall acknowledge the request, and
promptly either:
(1) Make any correction, deletion, or addition
which the requester believes should be made; or
(2) Inform the requester of his or her refusal to
correct or amend the record, the reason for refusal,
and the procedures for appeal.
(b) If the system manager is unable to comply
with the preceding paragraphs within 30 working
days of his or her receipt of a request, he or she
will inform the requester of that fact, the reasons,
and an estimate of when a determination will be
reached.
(c) In conducting the review of the request, the
system manager will be guided by the require-
ments of 5 U.S.C. 552a (e)(l) and (e)(5).
(d) If the system manager determines to grant
all or any portion of the request, he or she will:
(1) Advise the individual of that determination;
(2) Make the correction or amendment; and
(3) So inform any person or agency outside
EPA to whom the record has been disclosed, and,
where an accounting of that disclosure is main-
tained in accordance with 5 U.S.C. 552a(c), note
the occurrence and substance of the correction or
amendment in the accounting.
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§16.13
(e) If the system manager determines not to
grant all or any portion of a request for correction
or amendment, he or she will:
(1) Comply with paragraph (d)(3) of this section
(if necessary);
(2) Advise the individual of the determination
and its basis;
(3) Inform the individual that an appeal may be
made; and
(4) Describe the procedures for making the ap-
peal.
(f) If EPA receives from another Federal agency
a notice of correction or amendment of informa-
tion furnished by that agency and contained in one
of EPA's systems of records, the system manager
shall advise the individual and make the correction
as if EPA had originally made the correction or
amendment.
§16.9 Appeal of initial adverse agency
determination on request for cor-
rection or amendment.
(a) Any individual whose request for correction
or amendment is initially denied by EPA and who
wishes to appeal may do so by letter to the Pri-
vacy Act Officer. The appeal shall contain a de-
scription of the initial request sufficient to identify
it.
(b) The Privacy Act Officer shall make a final
determination not later than 30 working days from
the date on which the individual requests the re-
view, unless, for good cause shown, the Privacy
Act Officer extends the 30-day period and notifies
the requester. Such extension will be utilized only
in exceptional circumstances.
(c) In conducting the review of an appeal, the
Privacy Act Officer will be guided by the require-
ments of 5 U.S.C. 552a (e)(l) and (e)(5).
(d) If the Privacy Act Officer determines to
grant all or any portion of an appeal he or she
shall so inform the requester and EPA shall make
the correction or amendment and comply with
§ 16.8(d)(3).
(e) If the Privacy Act Officer determines not to
grant all or any portion of an appeal he or she
shall inform the requester:
(1) Of the determination and its basis;
(2) Of the requester's right to file a concise
statement of reasons for disagreeing with EPA's
decision;
(3) Of the procedures for filing such statement
of disagreement;
(4) That such statements of disagreements will
be made available in subsequent disclosures of the
record, together with an agency statement (if
deemed appropriate) summarizing its refusal;
(5) That prior recipients of the disputed record
will be provided with statements as in paragraph
(e)(4) of this section, to the extent that an account-
ing of disclosures is maintained under 5 U.S.C.
552a(c); and
(6) Of the requester's right to seek judicial re-
view under 5 U.S.C. 552a(g).
§16.10 Disclosure of record to person
other than the individual to whom
it pertains.
EPA shall not disclose any record which is con-
tained in a system of records it maintains except
pursuant to a written request by, or with the writ-
ten consent of, the individual to whom the record
pertains, unless the disclosure is authorized by one
or more of the provisions of 5 U.S.C. 552a(b).
§16.11 Fees.
No fees shall be charged for providing the first
copy of a record or any portion to an individual
to whom the record pertains. The fee schedule for
reproducing other records is the same as that set
forth in 40 CFR2.120.
§16.12 Penalties.
The Act provides, in pertinent part:
"Any person who knowingly and willfully re-
quests or obtains any record concerning an indi-
vidual from an agency under false pretenses shall
be guilty of a misdemeanor and fined not more
than $5,000." (5 U.S.C. 552a(i)(3).)
§ 16.13 General exemptions.
(a) Systems of records affected.
OIG Criminal Investigative Index and Files —
EPA/OIG.
HEPA-17 NEIC Criminal Investigative Index and
Files— EPA/NEIC/OCI.
(b) Authority. Under 5 U.S.C. 552a(j)(2), the
head of any agency may by rule exempt any sys-
tem of records within the agency from certain pro-
visions of the Privacy Act of 1974, if the system
of records is maintained by an agency or compo-
nent thereof which performs as its principal func-
tion any activity pertaining to the enforcement of
criminal laws and which consists of:
(1) Information compiled for the purpose of
identifying individual criminal offenders and al-
leged offenders and consisting only of identifying
data and notations of arrests, the nature and dis-
position of criminal charges, sentencing, confine-
ment, release, and parole and probation status;
(2) Information compiled for the purpose of a
criminal investigation, including reports of inform-
ants and investigators, and associated with an
identifiable individual; or
(3) Reports identifiable to an individual com-
piled at any stage of the process of enforcement
of the criminal laws from arrest or indictment
through release from supervision.
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§16.13
(c) Scope of exemption. (1) The EPA-4 system
of records identified in § 16.13(a) is maintained by
the Office of Investigations of the Office of In-
spector General (OIG), a component of EPA
which performs as its principal function activities
pertaining to the enforcement of criminal laws.
Authority for the criminal law enforcement activi-
ties of the OIG's Office of Investigations is the In-
spector General Act of 1978, 5 U.S.C. app.
(2) The EPA-17 system of records identified in
§ 16.13(a) is maintained by the Office of Criminal
Investigations (OCI) of the National Enforcement
Investigations Center (NEIC), a component of
EPA which performs as its principal function ac-
tivities pertaining to the enforcement of criminal
laws. Authority for the criminal law enforcement
activities of the NEIC's Office of Criminal Inves-
tigations is 28 U.S.C. 533, with appointment letter
from Benjamin Civiletti, Attorney General, to
Douglas Costle, Administrator, EPA, dated Janu-
ary 16, 1981.
(3) The systems of records identified in
§ 16.13(a) are exempted from the following provi-
sions of the Privacy Act of 1974: 5 U.S.C.
552a(c)(3) and (4); (d); (e)(l), (2), (3), (4)(G), (H),
and (I), (5), and (8); (f); and (g).
(4) To the extent that the exemption claimed
under 5 U.S.C. 552a(j)(2) is held to be invalid for
the systems of records identified in §16.13(a),
then an exemption under 5 U.S.C. 552a(k)(2) is
claimed for these systems of records.
(d) Reasons for exemption. The systems of
records identified in §16.13(a) are exempted from
the above provisions of the Privacy Act of 1974
for the following reasons:
(1) 5 U.S.C. 552a(c)(3) requires an agency to
make the accounting of each disclosure of records
available to the individual named in the record at
his request. These accountings must state the date,
nature, and purpose of each disclosure of a record
and the name and address of the recipient. Ac-
counting for each disclosure would alert the sub-
jects of an investigation to the existence of the in-
vestigation and the fact that they are subjects of
the investigation. The release of such information
to the subjects of an investigation would provide
them with significant information concerning the
nature of the investigation, and could seriously im-
pede or compromise the investigation, endanger
the physical safety of confidential sources, wit-
nesses, law enforcement personnel and their fami-
lies, and lead to the improper influencing of wit-
nesses, the destruction of evidence, or the fabrica-
tion of testimony.
(2) 5 U.S.C. 552a(c)(4) requires an agency to
inform any person or other agency about any cor-
rection or notation of dispute made by the agency
in accordance with subsection (d) of the Act.
Since EPA is claiming that these systems of
records are exempt from subsection (d) of the Act,
concerning access to records, this section is inap-
plicable and is exempted to the extent that these
systems of records are exempted from subsection
(d) of the Act.
(3) 5 U.S.C. 552a(d) requires an agency to per-
mit an individual to gain access to records pertain-
ing to him, to request amendment to such records,
to request a review of an agency decision not to
amend such records, and to contest the information
contained in such records. Granting access to
records in these systems of records could inform
the subject of an investigation of an actual or po-
tential criminal violation of the existence of that
investigation, of the nature and scope of the infor-
mation and evidence obtained as to his activities,
of the identity of confidential sources, witnesses,
and law enforcement personnel, and could provide
information to enable the subject to avoid detec-
tion or apprehension. Granting access to such in-
formation could seriously impede or compromise
an investigation, endanger the physical safety of
confidential sources, witnesses, law enforcement
personnel and their families, lead to the improper
influencing of witnesses, the destruction of evi-
dence, or the fabrication of testimony, and disclose
investigative techniques and procedures. In addi-
tion, granting access to such information could
disclose classified, security-sensitive, or confiden-
tial business information and could constitute an
unwarranted invasion of the personal privacy of
others.
(4) 5 U.S.C. 552a(e)(l) requires each agency to
maintain in its records only such information
about an individual as is relevant and necessary to
accomplish a purpose of the agency required by
statute or by executive order of the President. The
application of this provision could impair inves-
tigations and law enforcement, because it is not al-
ways possible to detect the relevance or necessity
of specific information in the early stages of an in-
vestigation. Relevance and necessity are often
questions of judgment and timing, and it is only
after the information is evaluated that the rel-
evance and necessity of such information can be
established. In addition, during the course of the
investigation, the investigator may obtain informa-
tion which is incidental to the main purpose of the
investigation but which may relate to matters
under the investigative jurisdiction of another
agency. Such information cannot readily be seg-
regated. Furthermore, during the course of the in-
vestigation, the investigator may obtain informa-
tion concerning the violation of laws other than
those which are within the scope of his jurisdic-
tion. In the interest of effective law enforcement,
the EPA investigators should retain this informa-
tion, since it can aid in establishing patterns of
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§16.13
criminal activity and can provide valuable leads
for other law enforcement agencies.
(5) 5 U.S.C. 552a(e)(2) requires an agency to
collect information to the greatest extent prac-
ticable directly from the subject individual when
the information may result in adverse determina-
tions about an individual's rights, benefits, and
privileges under Federal programs. The application
of this provision could impair investigations and
law enforcement by alerting the subject of an in-
vestigation of the existence of the investigation,
enabling the subject to avoid detection or appre-
hension, to influence witnesses improperly, to de-
stroy evidence, or to fabricate testimony. More-
over, in certain circumstances the subject of an in-
vestigation cannot be required to provide informa-
tion to investigators, and information must be col-
lected from other sources. Furthermore, it is often
necessary to collect information from sources
other than the subject of the investigation to verify
the accuracy of the evidence collected.
(6) 5 U.S.C. 552a(e)(3) requires an agency to
inform each person whom it asks to supply infor-
mation, on a form that can be retained by the per-
son, of the authority under which the information
is sought and whether disclosure is mandatory or
voluntary; of the principal purposes for which the
information is intended to be used; of the routine
uses which may be made of the information; and
of the effects on the person, if any, of not provid-
ing all or any part of the requested information.
The application of this provision could provide the
subject of an investigation with substantial infor-
mation about the nature of that investigation,
which could interfere with the investigation. More-
over, providing such a notice to the subject of an
investigation could seriously impede or com-
promise on undercover investigation by revealing
its existence and could endanger the physical safe-
ty of confidential sources, witnesses, and inves-
tigators by revealing their identities.
(7) 5 U.S.C. 552a(e)(4)(G) and (H) require an
agency to publish a FEDERAL REGISTER notice
concerning its procedures for notifying an individ-
ual at his request if the system of records contains
a record pertaining to him, how he can gain access
to such a record, and how he can contest its con-
tent. Since EPA is claiming that these systems of
records are exempt from subsection (f) of the Act,
concerning agency rules, and subsection (d) of the
Act, concerning access to records, these require-
ments are inapplicable and are exempted to the ex-
tent that these systems of records are exempted
from subsections (f) and (d) of the Act. Although
EPA is claiming exemption from these require-
ments, EPA has published such a notice concern-
ing its notification, access, and contest procedures
because, under certain circumstances, EPA might
decide it is appropriate for an individual to have
access to all or a portion of his records in these
systems of records.
(8) 5 U.S.C. 552a(e)(4)(I) requires an agency to
publish a FEDERAL REGISTER notice concerning
the categories of sources of records in the system
of records. Exemption from this provision is nec-
essary to protect the confidentiality of the sources
of information, to protect the privacy and physical
safety of confidential sources and witnesses, and
to avoid the disclosure of investigative techniques
and procedures. Although EPA is claiming exemp-
tion from this requirement, EPA has published
such a notice in broad generic terms in the belief
that this is all subsection (e)(4)(I) of the Act re-
quires.
(9) 5 U.S.C. 552a(e)(5) requires an agency to
maintain its records with such accuracy, relevance,
timeliness, and completeness as is reasonably nec-
essary to assure fairness to the individual in mak-
ing any determination about the individual. Since
the Act defines maintain to include the collection
of information, complying with this provision
would prevent the collection of any data not
shown to be accurate, relevant, timely, and com-
plete at the moment it is collected. In collecting
information for criminal law enforcement pur-
poses, it is not possible to determine in advance
what information is accurate, relevant, timely, and
complete. Facts are first gathered and then placed
into a logical order to prove or disprove objec-
tively the criminal behavior of an individual. Ma-
terial which may seem unrelated, irrelevant, or in-
complete when collected may take on added
meaning or significance as the investigation pro-
gresses. The restrictions of this provision could
interfere with the preparation of a complete inves-
tigative report, thereby impeding effective law en-
forcement.
(10) 5 U.S.C. 552a(e)(8) requires an agency to
make reasonable efforts to serve notice on an indi-
vidual when any record on such individual is
made available to any person under compulsory
legal process when such process becomes a matter
of public record. Complying with this provision
could prematurely reveal an ongoing criminal in-
vestigation to the subject of the investigation.
(11) 5 U.S.C. 552a(f)(l) requires an agency to
promulgate rules which shall establish procedures
whereby on an individual can be notified in re-
sponse to his request if any system of records
named by the individual contains a record pertain-
ing to him. The application of this provision could
impede or compromise an investigation or pros-
ecution if the subject of an investigation was able
to use such rules to learn of the existence of an
investigation before it could be completed. In ad-
dition, mere notice of the fact of an investigation
could inform the subject or others that their activi-
ties are under or may become the subject of an in-
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§16.14
vestigation and could enable the subjects to avoid
detection or apprehension, to influence witnesses
improperly, to destroy evidence, or to fabricate
testimony. Since EPA is claiming that these sys-
tems of records are exempt from subsection (d) of
the Act, concerning access to records, the require-
ments of subsections (f)(2) through (5) of the Act,
concerning agency rules for obtaining access to
such records, are inapplicable and are exempted to
the extent that these systems of records are ex-
empted from subsection (d) of the Act. Although
EPA is claiming exemption from the requirements
of subsection (f) of the Act, EPA has promulgated
rules which establish Agency procedures because,
under certain circumstances, it might be appro-
priate for an individual to have access to all or a
portion of his records in these systems of records.
These procedures are described elsewhere in this
part.
(12) 5 U.S.C. 552a(g) provides for civil rem-
edies if an agency fails to comply with the re-
quirements concerning access to records under
subsections (d)(l) and (3) of the Act; maintenance
of records under subsection (e)(5) of the Act; and
any other provision of the Act, or any rule pro-
mulgated thereunder, in such a way as to have an
adverse effect on an individual. Since EPA is
claiming that these systems of records are exempt
from subsections (c)(3) and (4), (d), (e)(l), (2),
(3), (4)(G), (H), and (I), (5), and (8), and (f) of
the Act, the provisions of subsection (g) of the Act
are inapplicable and are exempted to the extent
that these systems of records are exempted from
those subsections of the Act.
(e) Exempt records provided by another agency.
Individuals may not have access to records main-
tained by the EPA if such records were provided
by another agency which has determined by regu-
lation that such records are subject to general ex-
emption under 5 U.S.C. 552a(j). If an individual
requests access to such exempt records, EPA will
consult with the source agency.
(f) Exempt records included in a nonexempt sys-
tem of records. All records obtained from a system
of records which has been determined by regula-
tion to be subject to general exemption under 5
U.S.C. 552a(j) retain their exempt status even if
such records are also included in a system of
records for which a general exemption has not
been claimed.
[51 FR 24146, July 2, 1986]
§16.14 Specific exemptions.
(a) Exemptions under 5 U.S.C. 552a(k)(2)—(\)
Systems of records affected.
HEPA-2 General Personnel Records—EPA.
IJEPA^ OIG Criminal Investigative Index and Files—
EPA/OIG.
HEPA-5 OIG Personnel Security Files—EPA/OIG.
HEPA-17 NEIC Criminal Investigative Index and
Files— EPA/NEIC/OCI.
HEPA-30 OIG Hotline Allegation System—EPA/OIG.
(2) Authority. Under 5 U.S.C. 552a(k)(2), the
head of any agency may by rule exempt any sys-
tem of records within the agency from certain pro-
visions of the Privacy Act of 1974, if the system
of records is investigatory material compiled for
law enforcement purposes, other than material
within the scope of subsection (j)(2).
(3) Scope of exemption, (i) The systems of
records identified in §16.14(a)(l) are exempted
from the following provisions of the Privacy Act
of 1974, subject to the limitations set forth in 5
U.S.C. 552a(k)(2): 5 U.S.C. 552a (c)(3); (d);
(e)(l), (4)(G), (H), and (I); and (f).
(ii) An individual is denied any right, privilege,
or benefit that he would otherwise be entitled by
Federal law, or for which he would otherwise be
eligible, as a result of the maintenance of such
material, only if the Agency actually uses the ma-
terial in denying or proposing to deny such right,
privilege, or benefit.
(iii) To the extent that records contained in the
systems of records identified in §16.14(a)(l) are
maintained by the Office of Investigations of the
OIG or by the Office of Criminal Investigations of
the NEIC, components of EPA which perform as
their principal function activities pertaining to the
enforcement of criminal laws, then an exemption
under 5 U.S.C. 552a(j)(2) is claimed for these
records.
(4) Reasons for exemption. The systems of
records identified in §16.14(a)(l) are exempted
from the above provisions of the Privacy Act of
1974 for the following reasons:
(i) 5 U.S.C. 552a(c)(3) requires an agency to
make the accounting of each disclosure of records
available to the individual named in the record at
his request. These accountings must state the date,
nature, and purpose of each disclosure of a record
and the name and address of the recipient. Ac-
counting for each disclosure would alert the sub-
jects of an investigation to the existence of the in-
vestigation and the fact that they are subjects of
the investigation. The release of such information
to the subjects of an investigation would provide
them with significant information concerning the
nature of the investigation, and could seriously im-
pede or compromise the investigation, endanger
the physical safety of confidential sources, wit-
nesses, law enforcement personnel and their fami-
lies, and lead to the improper influencing of wit-
nesses, the destruction of evidence, or the fabrica-
tion of testimony.
(ii) 5 U.S.C. 552a(d) requires an agency to per-
mit an individual to gain access to records pertain-
ing to him, to request amendment to such records,
to request a review of an agency decision not to
-------
§16.14
amend such records, and to contest the information
contained in such records. Granting access to
records in these systems of records could inform
the subject of an investigation of an actual or po-
tential criminal violation of the existence of that
investigation, of the nature and scope of the infor-
mation and evidence obtained as to his activities,
of the identity of confidential sources, witnesses,
and law enforcement personnel, and could provide
information to enable the subject to avoid detec-
tion or apprehension. Granting access to such in-
formation could seriously impede or compromise
an investigation, endanger the physical safety of
confidential sources, witnesses, law enforcement
personnel and their families, lead to the improper
influencing of witnesses, the destruction of evi-
dence, or the fabrication of testimony, and disclose
investigative techniques and procedures. In addi-
tion, granting access to such information could
disclose classified, security-sensitive, or confiden-
tial business information and could constitute an
unwarranted invasion of the personal privacy of
others.
(iii) 5 U.S.C. 552a(e)(l) requires each agency to
maintain in its records only such information
about an individual as is relevant and necessary to
accomplish a purpose of the agency required by
statute or by executive order of the President. The
application of this provision could impair inves-
tigations and law enforcement, because it is not al-
ways possible to detect the relevance or necessity
of specific information in the early stages of an in-
vestigation. Relevance and necessity are often
questions of judgment and timing, and it is only
after the information is evaluated that the rel-
evance and necessity of such information can be
established. In addition, during the course of the
investigation, the investigator may obtain informa-
tion which is incidental to the main purpose of the
investigation but which may relate to matters
under the investigative jurisdiction of another
agency. Such information cannot readily be seg-
regated. Furthermore, during the course of the in-
vestigation, the investigator may obtain informa-
tion concerning the violation of laws other than
those which are within the scope of his jurisdic-
tion. In the interest of effective law enforcement,
EPA investigators should retain this information,
since it can aid in establishing patterns of criminal
activity and can provide valuable leads for other
law enforcement agencies.
(iv) 5 U.S.C. 552a(e)(4)(G) and (H) require an
agency to publish a FEDERAL REGISTER notice
concerning its procedures for notifying an individ-
ual at his request if the system of records contains
a record pertaining to him, how he can gain access
to such a record, and how he can contest its con-
tent. Since EPA is claiming that these systems of
records are exempt from subsection (f) of the Act,
concerning agency rules, and subsection (d) of the
Act, concerning access to records, these require-
ments are inapplicable and are exempted to the ex-
tent that these systems of records are exempted
from subsections (f) and (d) of the Act. Although
EPA is claiming exemption from these require-
ments, EPA has published such a notice concern-
ing its notification, access, and contest procedures
because, under certain circumstances, EPA might
decide it is appropriate for an individual to have
access to all or a portion of his records in these
systems of records.
(v) 5 U.S.C. 552a(e)(4)(I) requires an agency to
publish a FEDERAL REGISTER notice concerning
the categories of sources of records in the system
of records. Exemption from this provision is nec-
essary to protect the confidentiality of the sources
of information, to protect the privacy and physical
safety of confidential sources and witnesses, and
to avoid the disclosure of investigative techniques
and procedures. Although EPA is claiming exemp-
tion from this requirement, EPA has published
such a notice in broad generic terms in the belief
that this is all subsection (e)(4)(I) of the Act re-
quires.
(vi) 5 U.S.C. 552a(f)(l) requires an agency to
promulgate rules which shall establish procedures
whereby an individual can be notified in response
to his request if any system of records named by
the individual contains a record pertaining to him.
The application of this provision could impede or
compromise an investigation or prosecution if the
subject of an investigation was able to use such
rules to learn of the existence of an investigation
before it could be completed. In addition, mere
notice of the fact of an investigation could inform
the subject or others that their activities are under
or may become the subject of an investigation and
could enable the subjects to avoid detection or ap-
prehension, to influence witnesses improperly, to
destroy evidence, or to fabricate testimony. Since
EPA is claiming that these systems of records are
exempt from subsection (d) of the Act, concerning
access to records, the requirements of subsections
(f)(2) through (5) of the Act, concerning agency
rules for obtaining access to such records, are in-
applicable and are exempted to the extent that
these systems of records are exempted from sub-
section (d) of the Act. Although EPA is claiming
exemption from the requirements of subsection (f),
EPA has promulgated rules which establish Agen-
cy procedures because, under certain cir-
cumstances, it might be appropriate for an individ-
ual to have access to all or a portion of his records
in these systems of records. These procedures are
described elsewhere in this part.
(b) Exemption under 5 U.S.C. 552a(k)(5)—(1)
Systems of records affected.
HEPA-2 General Personnel Records—EPA.
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§16.14
OIG Criminal Investigative Index and Files—
EPA/OIG.
HEPA-5 OIG Personnel Security Files—EPA/OIG.
(2) Authority. Under 5 U.S.C. 552a(k)(5), the
head of any agency may by rule exempt any sys-
tem of records within the agency from certain pro-
visions of the Privacy Act of 1974, if the system
of records is investigatory material compiled sole-
ly for the purpose of determining suitability, eligi-
bility, or qualifications for Federal civilian em-
ployment, Federal contracts, or access to classified
information, but only to the extent that the disclo-
sure of such material would reveal the identity of
a source who furnished information to the Govern-
ment under an express promise that the identity of
the source would be held in confidence, or, prior
to September 27, 1975, under an implied promise
that the identity would be held in confidence.
(3) Scope of exemption, (i) The systems of
records identified in §16.14(b)(l) are exempted
from the following provisions of the Privacy Act
of 1974, subject to the limitations of 5 U.S.C.
552a(k)(5): 5 U.S.C. 552a (c)(3); (d); (e)(l),
(4)(H) and (I); and (f)(2) through (5).
(ii) To the extent that records contained in the
systems of records identified in §16.14(b)(l) re-
veal a violation or potential violation of law, then
an exemption under 5 U.S.C. 552a(k)(2) is also
claimed for these records.
(4) Reasons for exemption. The systems of
records identified in §16.14(b)(l) are exempted
from the above provisions of the Privacy Act of
1974 for the following reasons:
(i) 5 U.S.C. 552a(c)(3) requires an agency to
make the accounting of each disclosure of records
available to the individual named in the record at
his request. These accountings must state the date,
nature, and purpose of each disclosure of a record
and the name and address of the recipient. Making
such an accounting could cause the identity of a
confidential source to be revealed, endangering the
physical safety of the confidential source, and
could impair the future ability of the EPA to com-
pile investigatory material for the purpose of de-
termining suitability, eligibility, or qualifications
for Federal civilian employment, Federal contracts,
or access to classified information.
(ii) 5 U.S.C. 552a(d) requires an agency to per-
mit an individual to gain access to records pertain-
ing to him, to request amendment to such records,
to request a review of an agency decision not to
amend such records, and to contest the information
contained in such records. Granting such access
could cause the identity of a confidential source to
be revealed, endangering the physical safety of the
confidential source, and could impair the future
ability of the EPA to compile investigatory mate-
rial for the purpose of determining suitability, eli-
gibility, or qualifications for Federal civilian em-
ployment, Federal contracts, or access to classified
information.
(iii) 5 U.S.C. 552a(e)(l) requires each agency to
maintain in its records only such information
about an individual as is relevant and necessary to
accomplish a purpose of the agency required by
statute or by executive order of the President. The
application of this provision could impair inves-
tigations, because it is not always possible to de-
tect the relevance or necessity of specific informa-
tion in the early stages of an investigation. Rel-
evance and necessity are often questions of judg-
ment and timing, and it is only after the informa-
tion is evaluated that the relevance and necessity
of such information can be established.
(iv) 5 U.S.C. 552a(e)(4)(H) requires an agency
to publish a FEDERAL REGISTER notice concerning
its procedures for notifying an individual at his re-
quest how he can gain access to any record per-
taining to him and how he can contest its content.
Since EPA is claiming that these systems of
records are exempt from subsections (f)(2) through
(5) of the Act, concerning agency rules, and sub-
section (b) of the Act, concerning access to
records, these requirements are inapplicable and
are exempted to the extent that these systems of
records are exempted from subsections (f)(2)
through (5) and (d) of the Act. Although EPA is
claiming exemption from these requirements, EPA
has published such a notice concerning its access
and contest procedures because, under certain cir-
cumstances, EPA might decide it is appropriate for
an individual to have access to all or a portion of
his records in these systems of records.
(v) 5 U.S.C. 552a(e)(4)(I) requires an agency to
publish a FEDERAL REGISTER notice concerning
the categories of sources of records in the system
of records. Exemption from this provision is nec-
essary to protect the confidentiality of the sources
of information, to protect the privacy and physical
safety of confidential sources, and to avoid the
disclosure of investigative techniques and proce-
dures. Although EPA is claiming exemption from
this requirement, EPA has published such a notice
in broad generic terms in the belief that this is all
subsection (e)(4)(I) of the Act requires.
(vi) 5 U.S.C. 552a(f)(2) through (5) require an
agency to promulgate rules for obtaining access to
records. Since EPA is claiming that these systems
of records are exempt from subsection (d) of the
Act, concerning access to records, the require-
ments of subsections (f)(2) through (5) of the Act,
concerning agency rules for obtaining access to
such records, are inapplicable and are exempted to
the extent that this system of records is exempted
from subsection (d) of the Act. Although EPA is
claiming exemption from the requirements of sub-
sections (f)(2) through (5) of the Act, EPA has
promulgated rules which establish Agency proce-
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§16.14
dures because, under certain circumstances, it
might be appropriate for an individual to have ac-
cess to all or a portion of his records in this sys-
tem of records. These procedures are described
elsewhere in this part.
(c) Exemption under 5 U.S.C. 552a(k)(l)—(l)
System of records affected.
HEPA-5 DIG Personnel Security Files—EPA/OIG.
(2) Authority. Under 5 U.S.C. 552a(k)(l), the
head of any agency may by rule exempt any sys-
tem of records within the agency from certain pro-
visions of the Privacy Act of 1974, if the system
of records is subject to the provisions of 5 U.S.C.
552(b)(l). A system of records is subject to the
provisions of 5 U.S.C. 552(b)(l) if it contains
records that are specifically authorized under cri-
teria established by an Executive order to be kept
secret in the interest of national defense or foreign
policy and are in fact properly classified pursuant
to such Executive order. Executive Order 12356
establishes criteria for classifying records which
are to be kept secret in the interest of national de-
fense or foreign policy.
(3) Scope of exemption. To the extent that the
system of records identified in §16.14(c)(l) con-
tains records provided by other Federal agencies
that are specifically authorized under criteria es-
tablished by Executive Order 12356 to be kept se-
cret in the interest of national defense or foreign
policy and are in fact properly classified by other
Federal agencies pursuant to that Executive order,
the system of records is exempted from the fol-
lowing provisions of the Privacy Act of 1974: 5
U.S.C. 552a (c)(3); (d); (e)(l), (4)(G), (H), and (I);
and (f).
(4) Reasons for exemption. The system of
records identified in §16.14(c)(l) is exempted
from the above provisions of the Privacy Act of
1974 for the following reasons:
(i) 5 U.S.C. 552a(c)(3) requires an agency to
make the accounting of each disclosure of records
available to the individual named in the record at
his request. These accountings must state the date,
nature, and purpose of each disclosure of a record
and the name and address of the recipient. Making
such an accounting could result in the release of
properly classified information, which would com-
promise the national defense or disrupt foreign
policy.
(ii) 5 U.S.C. 552a(d) requires an agency to per-
mit an individual to gain access to records pertain-
ing to him, to request amendment to such records,
to request a review of an agency decision not to
amend such records, and to contest the information
contained in such records. Granting such access
could cause the release of properly classified in-
formation, which would compromise the national
defense or disrupt foreign policy.
(iii) 5 U.S.C. 552a(e)(l) requires each agency to
maintain in its records only such information
about an individual as is relevant and necessary to
accomplish a purpose of the agency required by
statute or by executive order of the President. The
application of this provision could impair person-
nel security investigations which use properly clas-
sified information, because it is not always pos-
sible to know the relevance or necessity of spe-
cific information in the early stages of an inves-
tigation. Relevance and necessity are often ques-
tions of judgment and timing, and it is only after
the information is evaluated that the relevance and
necessity of such information can be established.
(iv) 5 U.S.C. 552a(e)(4)(G) and (H) require an
agency to publish a FEDERAL REGISTER notice
concerning its procedures for notifying an individ-
ual at his request if the system of records contains
a record pertaining to him, how he can gain access
to such a record, and how he can contest its con-
tent. Since EPA is claiming that this system of
records is exempt from subsection (f) of the Act,
concerning agency rules, and subsection (d) of the
Act, concerning access to records, these require-
ments are inapplicable and are exempted to the ex-
tent that this system of records is exempted from
subsections (f) and (d) of the Act. Although EPA
is claiming exemption from these requirements,
EPA has published such a notice concerning its
notification, access, and contest procedures be-
cause, under certain circumstances, EPA might de-
cide it is appropriate for an individual to have ac-
cess to all or a portion of his records in this sys-
tem of records.
(v) 5 U.S.C. 552a(e)(4)(I) requires an agency to
publish a FEDERAL REGISTER notice concerning
the categories of sources of records in the system
of records. Exemption from this provision is nec-
essary to prevent the release of properly classified
information, which would compromise the national
defense or disrupt foreign policy. Although EPA is
claiming exemption from this requirement, EPA
has published such a notice in broad generic terms
in the belief that this is all subsection (e)(4)(I) of
the Act requires.
(vi) 5 U.S.C. 552(a)(f)(l) requires an agency to
promulgate rules which shall establish procedures
whereby an individual can be notified in response
to his request if any system of records named by
the individual contains a record pertaining to him.
The application of this provision could result in
the release of properly classified information,
which would compromise the national defense or
disrupt foreign policy. Since EPA is claiming that
this system of records is exempt from subsection
(d) of the Act, concerning access to records, the
requirements of subsections (f)(2) through (5) of
the Act, concerning agency rules for obtaining ac-
cess to such records, are inapplicable and are ex-
-------
§16.14
empted to the extent that this system of records is
exempted from subsection (d) of the Act. Al-
though EPA is claiming exemption from the re-
quirements of subsection (f) of the Act, EPA has
promulgated rules which establish Agency proce-
dures because, under certain circumstances, it
might be appropriate for an individual to have ac-
cess to all or a portion of his records in this sys-
tem of records. These procedures are described
elsewhere in this part.
(d) Exempt records provided by another agency.
Individuals may not have access to records main-
tained by the EPA if such records were provided
by another agency which has determined by regu-
lation that such records are subject to general ex-
emption under 5 U.S.C. 552a(j) or specific exemp-
tion under 5 U.S.C. 552a(k). If an individual re-
quests access to such exempt records, EPA will
consult with the source agency.
(e) Exempt records included in a nonexempt
system of records. All records obtained from a
system of records which has been determined by
regulation to be subject to specific exemption
under 5 U.S.C. 552a(k) retain their exempt status
even if such records are also included in a system
of records for which a specific exemption has not
been claimed.
[51 FR 24147, July 2, 1986, as amended at 59 FR 17485,
Apr. 13, 1994]
10
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PART 17—IMPLEMENTATION OF THE
EQUAL ACCESS TO JUSTICE ACT
IN EPA ADMINISTRATIVE PRO-
CEEDINGS
Subpart A—General Provisions
Sec.
17.1 Purpose of these rules.
17.2 Definitions.
17.3 Proceedings covered.
17.4 Applicability to EPA proceedings.
17.5 Eligibility of applicants.
17.6 Standards for awards.
17.7 Allowable fees and other expenses.
17.8 Delegation of authority.
Subpart B—Information Required From
Applicants
17.11 Contents of application.
17.12 Net worth exhibit.
17.13 Documentation of fees and expenses.
17.14 Time for submission of application.
Subpart C—Procedures for Considering
Applications
17.21 Filing and service of documents.
17.22 Answer to application.
17.23 Comments by other parties.
17.24 Settlement.
17.25 Extensions of time and further proceedings.
17.26 Decision on application.
17.27 Agency review.
17.28 Judicial review.
17.29 Payment of award.
AUTHORITY: Section 504, Title 5 U.S.C., as amended
by sec. 203(a)(l), Equal Access to Justice Act (Title 2 of
Pub. L. 96-481, 94 Stat. 2323).
SOURCE: 48 FR 39936, Sept. 2, 1983, unless otherwise
noted.
Subpart A—General Provisions
§17.1 Purpose of these rules.
These rules are adopted by EPA pursuant to
section 504 of title 5 U.S.C., as added by section
203(a)(l) of the Equal Access to Justice Act, Pub-
lic Law No. 96^181. Under the Act, an eligible
party may receive an award for attorney's fees and
other expenses when it prevails over EPA in an
adversary adjudication before EPA unless EPA's
position as a party to the proceeding was substan-
tially justified or special circumstances make an
award unjust. The purpose of these rules is to es-
tablish procedures for the submission and consid-
eration of applications for awards against EPA
when the underlying decision is not reviewed by
a court.
§17.2 Definitions.
As used in this part:
(a) The Act means section 504 of title 5 U.S.C.,
as amended by section 203(a)(l) of the Equal Ac-
cess to Justice Act, Public Law No. 96-481.
(b) Administrator means the Administrator of
the Environmental Protection Agency.
(c) Adversary adjudication means an adjudica-
tion required by statute to be held pursuant to 5
U.S.C. 554 in which the position of the United
States is represented by counsel or otherwise, but
excludes an adjudication for the purpose of grant-
ing or renewing a license.
(d) EPA means the Environmental Protection
Agency, an Agency of the United States.
(e) Presiding officer means the official, without
regard to whether he is designated as an adminis-
trative law judge or a hearing officer or examiner,
who presides at the adversary adjudication.
(f) Proceeding means an adversary adjudication
as defined in § 17.2(b).
§17.3 Proceedings covered.
(a) These rules apply to adversary adjudications
required by statute to be conducted by EPA under
5 U.S.C. 554. To the extent that they are adver-
sary adjudications, the proceedings conducted by
EPA to which these rules apply include:
(1) A hearing to consider the assessment of a
noncompliance penalty under section 120 of the
Clean Air Act as amended (42 U.S.C. 7420);
(2) A hearing to consider the termination of an
individual National Pollution Discharge Elimi-
nation System permit under section 402 of the
Clean Water Act as amended (33 U.S.C. 1342);
(3) A hearing to consider the assessment of any
civil penalty under section 16(a) of the Toxic Sub-
stances Control Act (15 U.S.C. 2615(a));
(4) A hearing to consider ordering a manufac-
turer of hazardous chemical substances or mixtures
to take actions under section 6(b) of the Toxic
Substances Control Act (15 U.S.C. 2605(b)), to
decrease the unreasonable risk posed by a chemi-
cal substance or mixture;
(5) A hearing to consider the assessment of any
civil penalty under section 14(a) of the Federal In-
secticide, Fungicide, and Rodenticide Act as
amended (7 U.S.C. 1361);
(6) A hearing to consider suspension of a reg-
istrant for failure to take appropriate steps in the
development of registration data under section
3(c)(2)(B) of the Federal Insecticide, Fungicide
and Rodenticide Act as amended (7 U.S.C. 136a);
(7) A hearing to consider the suspension or can-
cellation of a registration under section 6 of the
Federal Insecticide, Fungicide, and Rodenticide
Act as amended (7 U.S.C. 136d);
(8) A hearing to consider the assessment of any
civil penalty or the revocation or suspension of
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§17.4
any permit under section 105(a) or 105(f) of the
Marine Protection, Research, and Sanctuaries Act
as amended (33 U.S.C. 1415(a), 33 U.S.C.
(9) A hearing to consider the issuance of a com-
pliance order or the assessment of any civil pen-
alty conducted under section 3008 of the Resource
Conservation and Recovery Act as amended (42
U.S.C. 6928);
(10) A hearing to consider the issuance of a
compliance order under section 1 l(d) of the Noise
Control Act as amended (42 U.S.C. 4910(d)).
(b) If a proceeding includes both matters cov-
ered by the Act and matters specifically excluded
from coverage, any award made will include only
fees and expenses related to covered issues.
§17.4 Applicability to EPA proceed-
ings.
The Act applies to an adversary adjudication
pending before EPA at any time between October
1, 1981 and September 30, 1984. This includes
proceedings begun before October 1, 1981 if final
EPA action has not been taken before that date,
and proceedings pending on September 30, 1984.
§ 17.5 Eligibility of applicants.
(a) To be eligible for an award of attorney's
fees and other expenses under the Act, the appli-
cant must be a prevailing party in the adversary
adjudication for which it seeks an award. The term
party is defined in 5 U.S.C. 551(3). The applicant
must show that it meets all conditions of eligibility
set out in this subpart and in subpart B.
(b) The types of eligible applicants are as fol-
lows:
(1) An individual with a net worth of not more
than $1 million;
(2) The sole owner of an unincorporated busi-
ness which has a net worth of not more than $5
million and not more than 500 employees;
(3) A charitable or other tax-exempt organiza-
tion described in section 501(c)(3) of the Internal
Revenue Code (26 U.S.C. 501(c)(3)) with not
more than 500 employees;
(4) A cooperative association as defined in sec-
tion 15(a) of the Agricultural Marketing Act (12
U.S.C. 114j(a)) with not more than 500 employ-
ees; and
(5) Any other partnership, corporation, associa-
tion, or public or private organization with a net
worth of not more than $5 million and not more
than 500 employees.
(c) For the purpose of eligibility, the net worth
and number of employees of an applicant shall be
determined as of the date of adversary adjudica-
tion was initiated.
(d) An applicant who owns an unincorporated
business will be considered as an individual rather
than a sole owner of an unincorporated business
if the issues on which the applicant prevails are
related primarily to personal interests rather than
to business interest.
(e) The employees of an applicant include all
persons who regularly perform services for remu-
neration for the applicant under the applicant's di-
rection and control. Part-time employees shall be
included.
(f) The net worth and number of employees of
the applicant and all of its affiliates shall be aggre-
gated to determine eligibility. An individual or
group of individuals, corporation, or other entity
that directly or indirectly controls or owns a ma-
jority of the voting shares of another business'
board of directors, trustees, or other persons exer-
cising similar functions, shall be considered an af-
filiate of that business for purposes of this part. In
addition, the Presiding Officer may determine that
financial relationships of the applicant other than
those described in this paragraph constitute special
circumstances that would make an award unjust.
(g) An applicant is not eligible if it has partici-
pated in the proceeding on behalf of other persons
or entities that are ineligible.
§17.6 Standards for awards.
(a) A prevailing applicant may receive an award
for fees and expenses incurred in connection with
a proceeding unless the position of the EPA as a
party to the proceeding was substantially justified
or unless special circumstances make the award
sought unjust. No presumption arises that the
agency's position was not substantially justified
simply because the agency did not prevail.
(b) An award shall be reduced or denied if the
applicant has unduly or unreasonably protracted
the proceeding.
§17.7 Allowable fees and other ex-
penses.
(a) The following fees and other expenses are
allowable under the Act:
(1) Reasonable expenses of expert witnesses;
(2) The reasonable cost of any study, analysis,
engineering report, test, or project which EPA
finds necessary for the preparation of the party's
case;
(3) Reasonable attorney or agent fees;
(b) The amount of fees awarded will be based
upon the prevailing market rates for the kind and
quality of services furnished, except that:
(1) Compensation for an expert witness will not
exceed $24.09 per hour; and
(2) Attorney or agent fees will not be in excess
of $75 per hour.
(c) In determining the reasonableness of the fee
sought, the Presiding Officer shall consider the
following:
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§17.12
(1) The prevailing rate for similar services in
the community in which the attorney, agent, or
witness ordinarily performs services;
(2) The time actually spent in the representation
of the applicant;
(3) The difficulty or complexity of the issues
raised by the application;
(4) Any necessary and reasonable expenses in-
curred;
(5) Such other factors as may bear on the value
of the services performed.
§ 17.8 Delegation of authority.
The Administrator delegates to the Environ-
mental Appeals Board authority to take final ac-
tion relating to the Equal Access to Justice Act.
The Environmental Appeals Board is described at
40 CFR 1.25(e). This delegation does not preclude
the Environmental Appeals Board from referring
any matter related to the Equal Access to Justice
Act to the Administrator when the Environmental
Appeals Board deems it appropriate to do so.
When an appeal or motion is referred to the Ad-
ministrator by the Environmental Appeals Board,
all parties shall be so notified and the rules in this
part referring to the Environmental Appeals Board
shall be interpreted as referring to the Adminis-
trator.
[57 FR 5323, Feb 13, 1992]
Subpart B—Information Required
From Applicants
§17.11 Contents of application.
(a) An application for award of fees and ex-
penses under the Act shall identify the applicant
and the proceeding for which an award is sought.
The application shall show that the applicant has
prevailed and identify the position of EPA in the
proceeding that the applicant alleges was not sub-
stantially justified.
(b) The application shall include a statement
that the applicant's net worth as of the time the
proceeding was initiated did not exceed $1 million
if the applicant is an individual (other than a sole
owner of an unincorporated business seeking an
award in that capacity) or $5 million in the case
of all other applicants. An applicant may omit this
statement if:
(1) It attaches a copy of a ruling by the Internal
Revenue Service that it qualifies as an organiza-
tion described in section 501(c)(3) of the Internal
Revenue Code of 1954 (26 U.S.C. 501(c)(3)) and
is exempt from taxation under section 501(a) of
the Code or, in the case of such an organization
not required to obtain a ruling from the Internal
Revenue Service on its exempt status, a statement
that describes the basis for the applicant's belief
that it qualifies under section 501(c)(3) of the
Code; or
(2) It states that it is a cooperative association
as defined in section 15(a) of the Agricultural
Marketing Act (12 U.S.C. 114j(a)).
(c) If the applicant is a partnership, corporation,
association, or organization, or a sole owner of an
unincorporated business, the application shall state
that the applicant did not have more than 500 em-
ployees at the time the proceeding was initiated,
giving the number of its employees and describing
briefly the type and purpose of its organization or
business.
(d) The application shall itemize the amount of
fees and expenses sought.
(e) The application may include any other mat-
ters that the applicant believes should be consid-
ered in determining whether and in what amount
an award should be made.
(f) The application shall be signed by the appli-
cant with respect to the eligibility of the applicant
and by the attorney of the applicant with respect
to fees and expenses sought. The application shall
contain or be accompanied by a written verifica-
tion under oath or affirmation or under penalty of
perjury that the information provided in the appli-
cation and all accompanying material is true and
complete to the best of the signer's information
and belief.
(Approved by the Office of Management and Budget
under control number 2000-0403)
§ 17.12 Net worth exhibit.
(a) Each applicant except a qualified tax exempt
organization or a qualified cooperative must sub-
mit with its application a detailed exhibit showing
its net worth at the time the proceeding was initi-
ated. If any individual, corporation, or other entity
directly or indirectly controls or owns a majority
of the voting shares or other interest of the appli-
cant, or if the applicant directly or indirectly owns
or controls a majority of the voting shares or other
interest of any corporation or other entity, the ex-
hibit must include a showing of the net worth of
all such affiliates or of the applicant including the
affiliates. The exhibit may be in any form that
provides full disclosure of assets and liabilities of
the applicant and any affiliates and is sufficient to
determine whether the applicant qualifies under
the standards of 5 U.S.C. 504(b)(l)(B)(i). The Pre-
siding Officer may require an applicant to file ad-
ditional information to determine the applicant's
eligibility for an award.
(b) The net worth exhibit shall describe any
transfers of assets from, or obligations incurred by,
the applicant or any affiliate occurring in the one-
year period prior to the date on which the pro-
ceeding was initiated that reduced the net worth of
the applicant and its affiliates below the applicable
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§17.13
net worth ceiling. If there were no such trans-
actions, the applicant shall so state.
(c) The net worth exhibit shall be included in
the public record of the proceeding.
(Approved by the Office of Management and Budget
under control number 2000-0430)
§17.13 Documentation of fees and ex-
penses.
(a) The application shall be accompanied by full
documentation of fees and expenses, including the
cost of any study, engineering report, test, or
project, for which an award is sought.
(b) The documentation shall include an affidavit
from any attorney, agent, or expert witness rep-
resenting or appearing in behalf of the party stat-
ing the actual time expended and the rate at which
fees and other expenses were computed and de-
scribing the specific services performed.
(1) The affidavit shall itemize in detail the serv-
ices performed by the date, number of hours per
date, and the services performed during those
hours. In order to establish the hourly rate, the af-
fidavit shall state the hourly rate which is billed
and paid by the majority of clients during the rel-
evant time periods.
(2) If no hourly rate is paid by the majority of
clients because, for instance, the attorney or agent
represents most clients on a contingency basis, the
attorney or agent shall provide affidavits from two
attorneys or agents with similar experience, who
perform similar work, stating the hourly rate
which they bill and are paid by the majority of
their clients during a comparable time period.
(c) The documentation shall also include a de-
scription of any expenses for which reimbursement
is sought and a statement of the amounts paid and
payable by the applicant or by any other person or
entity for the services provided.
(d) The Presiding Officer may require the appli-
cant to provide vouchers, receipts, or other sub-
stantiation for any expenses claimed.
(Approved by the Office of Management and Budget
under control number 2000-0430)
§ 17.14 Time for submission of applica-
tion.
(a) An application must be filed no later than 30
days after final disposition of the proceeding. If
agency review or reconsideration is sought or
taken of a decision in which an applicant believes
it has prevailed, action on the award of fees shall
be stayed pending final agency disposition of the
underlying controversy.
(b) Final disposition means the later of: (1) The
date on which the Agency decision becomes final,
either through disposition by the Environmental
Appeals Board of a pending appeal or through an
initial decision becoming final due to lack of an
appeal or (2) the date of final resolution of the
proceeding, such as settlement or voluntary dis-
missal, which is not subject to a petition for re-
hearing or reconsideration.
(c) If judicial review is sought or taken of the
final agency disposition of the underlying con-
troversy, then agency proceedings for the award of
fees will be stayed pending completion of judicial
review. If, upon completion of review, the court
decides what fees to award, if any, then EPA shall
have no authority to award fees.
[48 FR 39936, Sept. 2, 1983, as amended at 57 FR 5323,
Feb. 13, 1992]
Subpart C—Procedures for
Considering Applications
§ 17.21 Filing and service of documents
An application for an award and any other
pleading or document related to the application
shall be filed and served on all parties to the pro-
ceeding in the same manner as other pleadings in
the proceeding.
§ 17.22 Answer to application.
(a) Within 30 calendar days after service of the
application, EPA counsel shall file an answer.
(b) If EPA counsel and the applicant believe
that they can reach a settlement concerning the
award, EPA counsel may file a statement of intent
to negotiate. The filing of such a statement shall
extend the time for filing an answer an additional
30 days.
(c) The answer shall explain in detail any objec-
tions to the award requested and identify the facts
relied on to support the objection. If the answer is
based on any alleged facts not already reflected in
the record of the proceeding, EPA counsel shall
include with the answer either a supporting affida-
vit or affidavits or request for further proceedings
under § 17.25.
§17.23 Comments by other parties.
Any party to a proceeding other than the appli-
cant and EPA counsel may file comments on an
application within 30 calendar days after it is
served or on an answer within 15 calendar days
after it is served.
§17.24 Settlement.
A prevailing party and EPA counsel may agree
on a proposed settlement of an award before final
action on the application, either in connection with
a settlement of the underlying proceeding or after
the underlying proceeding has been concluded. If
the party and EPA counsel agree on a proposed
settlement of an award before an application has
-------
§17.29
been filed, the application shall be filed with the
proposed settlement.
§17.25 Extensions of time and further
proceedings.
(a) The Presiding Officer may, on motion and
for good cause shown, grant extensions of time,
other than for filing an application for fees and ex-
penses, after final disposition in the adversary ad-
judication.
(b) Ordinarily, the determination of an award
will be made on the basis of the written record of
the underlying proceeding and the filings required
or permitted by the foregoing sections of these
rules. However, the adjudicative officer may sua
sponte or on motion of any party to the proceed-
ings require or permit further filings or other ac-
tion, such as an informal conference, oral argu-
ment, additional written submissions, or an evi-
dentiary hearing. Such further action shall be al-
lowed only when necessary for full and fair reso-
lution of the issues arising from the application
and shall take place as promptly as possible. A
motion for further filings or other action shall spe-
cifically identify the information sought on the
disputed issues and shall explain why the further
filings or other action is necessary to resolve the
issues.
(c) In the event that an evidentiary hearing is
required or permitted by the adjudicative officer,
such hearing and any related filings or other action
required or permitted shall be conducted pursuant
to the procedural rules governing the underlying
adversary adjudication.
§ 17.26 Decision on application.
The Presiding Officer shall issue a rec-
ommended decision on the application which shall
include proposed written findings and conclusions
on such of the following as are relevant to the de-
cision: (a) The applicant's status as a prevailing
party; (b) the applicant's qualification as a
"party" under 5 U.S.C. 504(b)(l)(B); (c) whether
EPA's position as a party to the proceeding was
substantially justified; (d) whether the special
cirumstances make an award unjust; (e) whether
the applicant during the course of the proceedings
engaged in conduct that unduly and unreasonably
protracted the final resolution of the matter in con-
troversy; and (f) the amounts, if any, awarded for
fees and other expenses, explaining any difference
between the amount requested and the amount
awarded.
§ 17.27 Agency review.
The recommended decision of the Presiding Of-
ficer will be reviewed by EPA in accordance with
EPA's procedures for the type of substantive pro-
ceeding involved.
§ 17.28 Judicial review.
Judicial review of final EPA decisions on
awards may be sought as provided in 5 U.S.C.
504(c)(2).
§ 17.29 Payment of award.
An applicant seeking payment of an award shall
submit a copy of the final decision granting the
award to the Office of Financial Management for
Processing. A statement that review of the under-
lying decision is not being sought in the United
States courts or that the process for seeking review
of the award has been completed must also be in-
cluded.
-------
PART 19—ADJUSTMENT OF CIVIL
MONETARY PENALTIES FOR IN-
FLATION
Sec.
19.1 Applicability.
19.2 Effective date.
19.3 [Reserved]
19.4 Penalty Adjustment and Table.
AUTHORITY: Pub. L. 101^10, 104 Stat. 890, 28 U.S.C.
2461 note; Pub. L. 104-134, 110 Stat. 1321, 31 U.S.C.
3701 note.
SOURCE: 61 FR 69364, Dec. 31, 1996, unless otherwise
noted.
§19.1 Applicability.
This part applies to each statutory provision
under the laws administered by the Environmental
Protection Agency concerning the maximum civil
monetary penalty which may be assessed in either
civil judicial or administrative proceedings.
§ 19.2 Effective date.
The increased penalty amounts set forth in this
part apply to all violations under the applicable
statutes and regulations which occur after January
30, 1997; except for violations subject to penalty
under 42 U.S.C. 4852d(b)(5) and 42 U.S.C.
4910(a)(2), which are subject to the new penalty
amounts for any violations after July 28, 1997.
[62 FR 35039, June 27, 1997]
EFFECTIVE DATE NOTE: At 62 FR 35039, June 27,
1997, § 19.2 was revised, effective July 28, 1997.
§ 19.3 [Reserved]
§ 19.4 Penalty Adjustment and Table.
The adjusted statutory penalty provisions and
their maximum applicable amounts are set out in
Table 1. The last column in the table provides the
newly effective maximum penalty amounts.
TABLE 1 OF SECTION 19.4—CIVIL MONETARY PENALTY INFLATION ADJUSTMENTS
U.S. Code citation
7 U.S.C. 1361. (a)(1)
7 U.S.C. 1361. (a)(2)
15 U.S.C. 261 5(a)
1 5 U S C 2647(a)
31 U.S.C. 3802(a)(1)
31 U.S.C. 3802(a)(2)
33 U.S.C. 1319(d)
33 U.S.C. 1319(g)(2)(A)
33 U.S.C. 1319(g)(2)(B)
33 U.S.C. 1321(b)(6)(B)(l) ....
33 U.S.C. 1321(b)(6)(B)(ii) ...
33 U.S.C. 1321(b)(7)(A)
33 U.S.C. 1321(b)(7)(B)
33 U.S.C. 1321(b)(7)(C)
33 U.S.C. 1321(b)(7)(D)
33 U SC 1414b(d)
33 U.S.C. 1415(a)
42 U.S.C. 300g-3(b)
42 U.S.C. 300g-3(c)
42 U.S.C. 300g-3(g)(3)(A) ...
42 U.S.C. 300g-3(g)(3)(B) ...
42 U.S.C. 300g-3(g)(3)(C) ...
Civil monetary penalty description
FEDERAL INSECTICIDE, FUNGICIDE, . RODENTICIDE ACT CIVIL
PENALTY— GENERAL— COMMERCIAL APPLICATORS, ETC.
FEDERAL INSECTICIDE, FUNGICIDE, & RODENTICIDE ACT CIVIL
PENALTY— PRIVATE APPLICATORS— FIRST AND SUBSEQUENT
OFFENSES OR VIOLATIONS.
TOXIC SUBSTANCES CONTROL ACT CIVIL PENALTY
ASBESTOS HAZARD EMERGENCY RESPONSE ACT CIVIL PENALTY
PROGRAM FRAUD CIVIL REMEDIES ACT/VIOLATION INVOLVING
FALSE CLAIM.
PROGRAM FRAUD CIVIL REMEDIES ACT/VIOLATION INVOLVING
FALSE STATEMENT.
CLEAN WATER ACT VIOLATION/CIVIL JUDICIAL PENALTY
CLEAN WATER ACT VIOLATION/ADMINISTRATIVE PENALTY PER
VIOLATION AND MAXIMUM.
CLEAN WATER ACT VIOLATION/ADMINISTRATIVE PENALTY PER
VIOLATION AND MAXIMUM.
CLEAN WATER ACT VIOLATION/ADMIN PENALTY OF SEC
311(b)(3)&(j) PER VIOLATION AND MAXIMUM.
CLEAN WATER ACT VIOLATION/ADMIN PENALTY OF SEC
311(b)(3)&(j) PER VIOLATION AND MAXIMUM.
CLEAN WATER ACT VIOLATION/CIVIL JUDICIAL PENALTY OF SEC
311(b)(3)— PER VIOLATION PER DAY OR PER BARREL OR UNIT.
CLEAN WATER ACT VIOLATION/CIVIL JUDICIAL PENALTY OF SEC
CLEAN WATER ACT VIOLATION/CIVIL JUDICIAL PENALTY OF SEC
311ffl.
CLEAN WATER ACT VIOLATION/MINIMUM CIVIL JUDICIAL PENALTY
OF SEC 311(b)(3)— PER VIOLATION OR PER BARREL/UNIT.
MARINE PROTECTION, RESEARCH & SANCTUARIES ACT VIOL
SEC 104b(d).
MARINE PROTECTION RESEARCH AND SANCTUARIES ACT VIOLA-
TIONS—FIRST & SUBSEQUENT VIOLATIONS.
SAFE DRINKING WATER ACT/CIVIL JUDICIAL PENALTY OF SEC
1414(b).
SAFE DRINKING WATER ACT/CIVIL JUDICIAL PENALTY OF SEC
1414(c).
SAFE DRINKING WATER ACT/CIVIL JUDICIAL PENALTY OF SEC
1414(g)(3)(a).
SAFE DRINKING WATER ACT/MAXIMUM ADMINISTRATIVE PEN-
ALTIES PER SEC 1414(g)(3)(B).
SAFE DRINKING WATER ACT/THRESHOLD REQUIRING CIVIL JUDI-
CIAL ACTION PER SEC 1414(g)(3)(C).
New maximum pen-
alty amount
$5,500
$550/$ 1,000
$27,500
$5,500
$5,500
$5,500
$27,500
$11,000/$27,500
$11,000/$1 37,500
$11,000/$27,500
$11,000/$1 37,500
$27,500 or $1,100
per barrel or unit
$27,500
$27,500
$11 0,000 or $3,300
per barrel or unit
$660
$55,000/$1 37,500
$27,500
$27,500
$27,500
$5,000/$25,000
$25,000
-------
§19.4
TABLE 1 OF SECTION 19.4—CIVIL MONETARY PENALTY INFLATION ADJUSTMENTS—Continued
U.S. Code citation
42 U.S.C. 300h-2(b)(1)
42 U.S.C. 300h-2(c)(1)
42 U.S.C. 300h-2(c)(2)
42 U.S.C. 300h-3(c)(1)
42 U.S.C. 300h-3(c)(2)
42 U.S.C. 300i(b)
42 U.S.C. 3001-1 (c)
42 U.S.C. 300j(e)(2)
42 U.S.C. 300j-4(c)
42 U.S.C. 300j-6(b)(2)
42 U.S.C. 300j-23(d)
42 U.S.C. 4852d(b)(5)
42 U.S.C. 4910(a)(2)
42 U S C 6928(a)(3)
42 U S C 6928(c)
42 U S C 6928(g)
42 U S C 6928(h)(2)
42 U S C 6934(e)
42 U S C 6973(b)
42 U.S.C. 6991e(a)(3)
42 U.S.C. 6991e(d)(1)
42 U.S.C. 6991e(d)(2)
42 U.S.C. 6992d(a)(2)
42 U.S.C. 6992d(a)(4)
42 U.S.C. 6992d(d)
42 U SC 741 3(b)
42 U.S.C. 7413(d)(1)
42 U.S.C. 7413(d)(3)
42 U S C 7524(a)
42 U S C 7524(a)
42 U S C 7524(c)
42 U S C 7545(d)
42 U.S.C. 9604(e)(5)(B)
42 U.S.C. 9606(b)(1)
42 U.S.C. 9609 (a) & (b)
42 U S C 9609(b)
42 U.S.C. 9609(c)
Civil monetary penalty description
SDWA/CIVIL JUDICIAL PENALTY/VIOLATIONS OF REQS— UNDER-
GROUND INJECTION CONTROL (UIC).
SDWA/CIVIL ADMIN PENALTY/VIOLATIONS OF UIC REQS— PER
VIOLATION AND MAXIMUM.
SDWA/CIVIL ADMIN PENALTY/VIOLATIONS OF UIC REQS— PER
VIOLATION AND MAXIMUM.
SDWA/VIOLATION/OPERATION OF NEW UNDERGROUND INJEC-
TION WELL.
SDWA/WILLFUL VIOLATION/OPERATION OF NEW UNDERGROUND
INJECTION WELL.
SDWA/FAILURE TO COMPLY WITH IMMINENT AND SUBSTANTIAL
ENDANGERMENT ORDER.
SDWA/ATTEMPTING TO OR TAMPERING WITH PUBLIC WATER
SYSTEM/CIVIL JUDICIAL PENALTY.
SDWA/FAILURE TO COMPLY W/ORDER ISSUED UNDER SEC.
SDWA/REFUSAL TO COMPLY WITH REQS. OF SEC. 1445(a) OR (b)
SDWA/FAILURE TO COMPLY WITH ADMIN. ORDER ISSUED TO
FEDERAL FACILITY.
SDWA/VIOLATIONS/SECTION 1463(b)— FIRST OFFENSE/REPEAT
OFFENSE.
RESIDENTIAL LEAD-BASED PAINT HAZARD REDUCTION ACT OF
1992, SEC 1018— CIVIL PENALTY.
NOISE CONTROL ACT OF 1972— CIVIL PENALTY
RESOURCE CONSERVATION & RECOVERY ACT/VIOLATION SUB-
TITLE C ASSESSED PER ORDER.
RES. CONS. & REC. ACT/CONTINUED NONCOMPLIANCE OF COM-
PLIANCE ORDER.
RESOURCE CONSERVATION & RECOVERY ACT/VIOLATION SUB-
TITLE C.
RES. CONS. & REC. ACT/NONCOMPLIANCE OF CORRECTIVE AC-
TION ORDER.
RES. CONS. & REC. ACT/NONCOMPLIANCE WITH SECTION 3013
ORDER.
RES. CONS. & REC. ACT/VIOLATIONS OF ADMINISTRATIVE ORDER
RES. CONS. & REC. ACT/NONCOMPLIANCE WITH UST ADMINIS-
TRATIVE ORDER.
RES. CONS. & REC. ACT/FAILURE TO NOTIFY OR FOR SUBMIT-
TING FALSE INFORMATION.
RCRA/VIOLATIONS OF SPECIFIED UST REGULATORY REQUIRE-
MENTS.
RCRA/NONCOMPLIANCE W/MEDICAL WASTE TRACKING ACT AS-
SESSED THRU ADMIN ORDER.
RCRA/NONCOMPLIANCE W/MEDICAL WASTE TRACKING ACT AD-
MINISTRATIVE ORDER.
RCRA/VIOLATIONS OF MEDICAL WASTE TRACKING ACT— JUDI-
CIAL PENALTIES.
CLEAN AIR ACT/VIOLATION/OWNERS & OPERATORS OF STATION-
ARY AIR POLLUTION SOURCES— JUDICIAL PENALTIES.
CLEAN AIR ACT/VIOLATION/OWNERS & OPERATORS OF STATION-
ARY AIR POLLUTION SOURCES-ADMINISTRATIVE PENALTIES
PER VIOLATION & MAX.
CLEAN AIR ACT/MINOR VIOLATIONS/STATIONARY AIR POLLUTION
SOURCES— FIELD CITATIONS.
TAMPERING OR MANUFACTURE/SALE OF DEFEAT DEVICES IN
VIOLATION OF 7522(a)(3)(A) OR (a)(3)(B)— BY PERSONS.
VIOLATION OF 7522(a)(3)(A) OR (a)(3)(B)— BY MANUFACTURERS
OR DEALERS; ALL VIOLATIONS OF 7522(a)(1),(2), (4),&(5) BY
ANYONE.
ADMINISTRATIVE PENALTIES AS SET IN 7524(a) & 7545(d) WITH A
MAXIMUM ADMINISTRATIVE PENALTY.
VIOLATIONS OF FUELS REGULATIONS
SUPERFUND AMEND. & REAUTHORIZATION ACT/NONCOMPLI-
ANCE W/REQUEST FOR INFO OR ACCESS.
SUPERFUND/WORK NOT PERFORMED W/IMMINENT, SUBSTAN-
TIAL ENDANGERMENT.
SUPERFUND/ADMIN. PENALTY VIOLATIONS UNDER 42 U.S.C.
SECT. 9603, 9608, OR 9622.
SUPERFUND/ADMIN. PENALTY VIOLATIONS— SUBSEQUENT
SUPERFUND/CIVIL JUDICIAL PENALTY/VIOLATIONS OF SECT.
9603, 9608, 9622.
New maximum pen-
alty amount
$27,500
$11,000/$1 37,500.
$5,500/$1 37,500
$5,500
$11,000
$15,000.
$22,000/$55,000
$2,750
$27,500
$25,000
$5,500/$55,000
$11,000
$11,000
$27,500
$27,500
$27,500
$27,500
$5,500
$5,500
$27,500
$11,000
$11,000
$27,500
$27,500
$27,500
$27,500
$27,500/$220,000
$5,500.
$2,750
$27,500
$220,000
$27,500
$27,500
$27,500
$27,500.
$82,500
$27,500
-------
§19.4
TABLE 1 OF SECTION 19.4—CIVIL MONETARY PENALTY INFLATION ADJUSTMENTS—Continued
U.S. Code citation
42 U S C 9609(c)
42 U.S.C. 11045 (a) & (b)
0), (2) & (3).
42 U.S.C. 11045(b) (2) & (3)
42 U.S.C. 11045(c)(1)
42 U.S.C. 11045(c)(2)
42 U.S.C. 11045(d)(1)
Civil monetary penalty description
SUPERFUND/CIVIL JUDICIAL PENALTY/SUBSEQUENT VIOLATIONS
OF SECT. 9603, 9608, 9622.
EMERGENCY PLANNING AND COMMUNITY RIGHT-TO-KNOW ACT
CLASS I & II ADMINISTRATIVE AND CIVIL PENALTIES.
EPCRA CLASS I & II ADMINISTRATIVE AND CIVIL PENALTIES-
SUBSEQUENT VIOLATIONS.
EPCRA CIVIL AND ADMINISTRATIVE REPORTING PENALTIES FOR
VIOLATIONS OF SECTIONS 11022 OR 11023.
EPCRA CIVIL AND ADMINISTRATIVE REPORTING PENALTIES FOR
VIOLATIONS OF SECTIONS 11021 OR 11043(b).
EPCRA— FRIVOLOUS TRADE SECRET CLAIMS— CIVIL AND ADMIN-
ISTRATIVE PENALTIES.
New maximum pen-
alty amount
$82,500
$27,500
$82,500
$27,500
$11,000
$27,500
[61 FR 69364, Dec. 31, 1996; 62 FR 13515, Mar. 20,
1997; 62 FR 35039, June 27, 1997]
EFFECTIVE DATE NOTE: At 62 FR 35039, June 27,
1997, table 1 of § 19.4 was amended by adding two en-
tries, effective July 28, 1997.
-------
PART 20—CERTIFICATION OF
FACILITIES
Sec.
20.1 Applicability.
20.2 Definitions.
20.3 General provisions.
20.4 Notice of intent to certify.
20.5 Applications.
20.6 State certification.
20.7 General policies.
20.8 Requirements for certification.
20.9 Cost recovery.
20.10 Revocation.
APPENDIX A TO PART 20—GUIDELINES FOR CERTIFI-
CATION
AUTHORITY: Sees. 301, 704, 80 Stat. 379, 83 Stat. 667;
5 U.S.C. 301, 26 U.S.C. 169.
SOURCE: 36 FR 22382, Nov. 25, 1971, unless otherwise
noted.
§20.1 Applicability.
The regulations of this part apply to certifi-
cations by the Administrator of water or air pollu-
tion control facilities for purposes of section 169
of the Internal Revenue Code of 1954, as amend-
ed, 26 U.S.C. 169, as to which the amortization
period began after December 31, 1975. Certifi-
cation of air or water pollution control facilities as
to which the amortization period began before Jan-
uary 1, 1976, will continue to be governed by En-
vironmental Protection Agency regulations pub-
lished November 25, 1971, at 36 FR 22382. Ap-
plicable regulations of the Department of Treasury
are at 26 CFR 1.169 et seq.
[43 FR 1340, Jan. 9, 1978]
§20.2 Definitions.
As used in this part, the following terms shall
have the meaning indicated below:
(a) Act means, when used in connection with
water pollution control facilities, the Federal Water
Pollution Control Act, as amended (33 U.S.C.
1251 et seq.) or, when used in connection with air
pollution control facilities, the Clean Air Act, as
amended (42 U.S.C. 1857 et seq.).
(b) State certifying authority means:
(1) For water pollution control facilities, the
State pollution control agency as defined in sec-
tion 502 of the Act.
(2) For air pollution control facilities, the air
pollution control agency designated pursuant to
section 302(b)(l) of the Act; or
(3) For both air and water pollution control fa-
cilities, any interstate agency authorized to act in
place of the certifying agency of a State.
(c) Applicant means any person who files an ap-
plication with the Administrator for certification
that a facility is in compliance with the applicable
regulations of Federal agencies and in furtherance
of the general policies of the United States for co-
operation with the States in the prevention and
abatement of water or air pollution under the Act.
(d) Administrator means the Administrator, En-
vironmental Protection Agency.
(e) Regional Administrator means the Regional
designee appointed by the Administrator to certify
facilities under this part.
(f) Facility means property comprising any new
identifiable treatment facility which removes, al-
ters, disposes of, stores, or prevents the creation of
pollutants, contaminants, wastes, or heat.
(g) State means the States, the District of Co-
lumbia, the Commonwealth of Puerto Rico, the
Canal Zone, Guam, American Samoa, the Virgin
Islands, and the Trust Territory of the Pacific Is-
lands.
[36 FR 22382, Nov. 25, 1971, as amended at 43 FR
1340, Jan. 9, 1978]
§ 20.3 General provisions.
(a) An applicant shall file an application in ac-
cordance with this part for each separate facility
for which certification is sought; Provided, That
one application shall suffice in the case of sub-
stantially identical facilities which the applicant
has installed or plans to install in connection with
substantially identical properties; Provided further,
That an application may incorporate by reference
material contained in an application previously
submitted by the applicant under this part and per-
taining to substantially identical facilities.
(b) The applicant shall, at the time of applica-
tion to the State certifying authority, submit an ap-
plication in the form prescribed by the Adminis-
trator to the Regional Administrator for the region
in which the facility is located.
(c) Applications will be considered complete
and will be processed when the Regional Adminis-
trator receives the completed State certification.
(d) Applications may be filed prior or subse-
quent to the commencement of construction, ac-
quisition, installation, or operation of the facility.
(e) An amendment to an application shall be
submitted in the same manner as the original ap-
plication and shall be considered a part of the
original application.
(f) If the facility is certified by the Regional
Administrator, notice of certification will be issued
to the Secretary of the Treasury or his delegate,
and a copy of the notice shall be forwarded to the
applicant and to the State certifying authority. If
the facility is denied certification, the Regional
Administrator will advise the applicant and State
certifying authority in writing of the reasons there-
for.
(g) No certification will be made by the Re-
gional Administrator for any facility prior to the
1
-------
§20.4
time it is placed in operation and the application,
or amended application, in connection with such
facility so states.
(h) An applicant may appeal any decision of the
Regional Administrator which:
(1) Denies certification;
(2) Disapproves the applicant's suggested meth-
od of allocating costs pursuant to § 20.8(e); or
(3) Revokes a certification pursuant to §20.10.
Any such appeal may be taken by filing with the
Administrator within 30 days from the date of the
decision of the Regional Administrator a written
statement of objections to the decision appealed
from. Within 60 days after receipt of such appeal
the Administrator shall affirm, modify, or revoke
the decision of the Regional Administrator, stating
in writing his reasons therefor.
[36 FR 22382, Nov. 25, 1971, as amended at 43 FR
1340, Jan. 9, 1978]
§ 20.4 Notice of intent to certify.
(a) On the basis of applications submitted prior
to the construction, reconstruction, erection, acqui-
sition, or operation of a facility, the Regional Ad-
ministrator may notify applicants that such facility
will be certified if:
(1) The Regional Administrator determines that
such facility, if constructed, reconstructed, erected,
acquired, installed, and operated in accordance
with such application will be in compliance with
requirements identified in §20.8; and if
(2) The application is accompanied by a state-
ment from the State certifying authority that such
facility, if constructed, reconstructed, acquired,
erected, installed, and operated in accordance with
such application, will be in conformity with the
State program or requirements for abatement or
control of water or air pollution.
(b) Notice of actions taken under this section
will be given to the appropriate State certifying
authority.
§20.5 Applications.
Applications for certification under this part
shall be submitted in such manner as the Adminis-
trator may prescribe, shall be signed by the appli-
cant or agent thereof, and shall include the follow-
ing information:
(a) Name, address, and Internal Revenue Serv-
ice identifying number of the applicant;
(b) Type and narrative description of the new
identifiable facility for which certification is (or
will be) sought, including a copy of schematic or
engineering drawings, and a description of the
function and operation of such facility;
(c) Address (or proposed address) of facility lo-
cation;
(d) A general description of the operation in
connection with which the facility is (or will be)
used and a description of the specific process or
processes resulting in discharges or emissions
which are (or will be) controlled or prevented by
the facility.
(e) If the facility is (or will be) used in connec-
tion with more than one plant or other property,
one or more of which were not in operation before
January 1, 1976, a description of the operations of
the facility in respect to each plant or other prop-
erty, including a reasonable allocation of the costs
of the facility among the plants being serviced,
and a description of the reasoning and accounting
method or methods used to arrive at these alloca-
tions.
(f) A description of the effect of the facility in
terms of type and quantity of pollutants, contami-
nants, wastes, or heat, removed, altered, stored,
disposed of, or prevented by the facility.
(g) If the facility performs a function other than
removal, alteration, storage, prevention, or disposal
of pollutants, contaminants, wastes, or heat, a de-
scription of all functions performed by the facility,
including a reasonable identification of the costs
of the facility allocable to removal, alteration, stor-
age, prevention, or disposal of pollutants, contami-
nants, wastes, or heat and a description of the rea-
soning and accounting method or methods used to
arrive at the allocation.
(h) Date when such construction, reconstruction,
or erection will be completed or when such facil-
ity was (or will be) acquired;
(i) Date when such facility is placed (or is in-
tended to be placed) in operation;
(j) Identification of the applicable State and
local water or air pollution control requirements
and standards, if any;
(k) Expected useful life of facility;
(1) Cost of construction, acquisition, installation,
operation, and maintenance of the facility;
(m) Estimated profits reasonably expected to be
derived through the recovery of wastes or other-
wise in the operation of the facility over the pe-
riod referred to in paragraph (a)(6) of 26 CFR
1.169-2;
(n) The percentage (if any, and if the taxpayer
claims that the percentage is 5 percent or less) by
which the facility (1) increases the output or ca-
pacity, (2) extends the useful life, or (3) reduces
the total operating costs of the operating unit of
the plant or other property most directly associated
with the pollution control facility and a description
of the reasoning and accounting method or meth-
ods used to arrive at this percentage.
(o) Such other information as the Administrator
deems necessary for certification.
[36 FR 22382, Nov. 25, 1971, as amended at 43 FR
1340, Jan. 9, 1978]
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§20.8
§20.6 State certification.
The State certification shall be by the State cer-
tifying authority having jurisdiction with respect to
the facility in accordance with 26 U.S.C.
169(d)(l)(A) and (d)(2). The certification shall
state that the facility described in the application
has been constructed, reconstructed, erected, or ac-
quired in conformity with the State program or re-
quirements for abatement or control of water or air
pollution. It shall be executed by an agent or offi-
cer authorized to act on behalf of the State certify-
ing authority.
§20.7 General policies.
(a) The general policies of the United States for
cooperation with the States in the prevention and
abatement of water pollution are: To enhance the
quality and value of our water resources; to elimi-
nate or reduce the pollution of the nation's waters
and tributaries thereof; to improve the sanitary
condition of surface and underground waters; and
to conserve such waters for public water supplies,
propagation of fish and aquatic life and wildlife,
recreational purposes, and agricultural, industrial,
and other legitimate uses.
(b) The general policy of the United States for
cooperation with the States in the prevention and
abatement of air pollution is to cooperate with and
to assist the States and local governments in pro-
tecting and enhancing the quality of the Nation's
air resources by the prevention and abatement of
conditions which cause or contribute to air pollu-
tion which endangers the public health or welfare.
§ 20.8 Requirements for certification.
(a) Subject to §20.9, the Regional Administrator
will certify a facility if he makes the following de-
terminations:
(1) It has been certified by the State certifying
authority.
(2) That the facility: (i) Removes, alters, dis-
poses of, stores, or prevents the creation of pollut-
ants, contaminants, wastes, or heat, which, but for
the facility, would be released into the environ-
ment;
(ii) Does not by a factor or more than 5 percent:
(A) Increase the output or capacity, (B) extend the
useful life, or (C) reduce the total operating costs
of the operating unit (of the plant or other prop-
erty) most directly associated with the pollution
control facility; and
(iii) Does not significantly alter the nature of
the manufacturing or production process or facil-
ity.
(3) The applicant is in compliance with all regu-
lations of Federal agencies applicable to use of the
facility, including conditions specified in any
NPDES permit issued to the applicant under sec-
tion 402 of the Act.
(4) The facility furthers the general policies of
the United States and the States in the prevention
and abatement of pollution.
(5) The applicant has complied with all the
other requirements of this part and has submitted
all requested information.
(b) In determining whether use of a facility fur-
thers the general policies of the United States and
the States in the prevention and abatement of
water pollution, the Regional Administrator shall
consider whether such facility is consistent with
the following, insofar as they are applicable to the
waters which will be affected by the facility:
(1) All applicable water quality standards, in-
cluding water quality criteria and plans of imple-
mentation and enforcement established pursuant to
section 303 of the Act or State laws or regula-
tions;
(2) Decisions issued pursuant to section 310 of
the Act;
(3) Water pollution control programs required
pursuant to any one or more of the following sec-
tions of the Act: Section 306, section 307, section
311, section 318, or section 405; or in order to be
consistent with a plan under section 208.
(c) In determining whether use of a facility fur-
thers the general policies of the United States and
the States in the prevention and abatement of air
pollution, the Regional Administrator shall con-
sider whether such facility is consistent with and
meets the following requirements, insofar as they
are applicable to the air which will be affected by
the facility;
(1) Plans for the implementation, maintenance,
and enforcement of ambient air quality standards
adopted or promulgated pursuant to section 110 of
the Act;
(2) Recommendations issued pursuant to sec-
tions 103(e) and 115 of the Act which are applica-
ble to facilities of the same type and located in the
area to which the recommendations are directed;
(3) Local government requirements for control
of air pollution, including emission standards;
(4) Standards promulgated by the Administrator
pursuant to the Act.
(d) A facility that removes elements or com-
pounds from fuels that would be released as pol-
lutants when such fuels are burned is eligible for
certification if the facility is—
(1) Used in connection with a plant or other
property in operation before January 1, 1976
(whether located and used at a particular plant or
as a centralized facility for one or more plants),
and
(2) Is otherwise eligible for certification.
(e) Where a facility is used in connection with
more than one plant or other property, one or
more of which were not in operation before Janu-
ary 1, 1976, or where a facility will perform a
-------
§20.9
function other than the removal, alteration, storage,
disposal, or prevention of pollutants, contaminants,
wastes, or heat, the Regional Administrator will so
indicate on the notice of certification and will ap-
prove or disapprove the applicant's suggested
method of allocating costs. If the Regional Admin-
istrator disapproves the applicant's suggested
method, he shall identify the proportion of costs
allocable to each such plant, or to the removal, al-
teration, storage, disposal, or prevention of pollut-
ants, contaminants, wastes, or heat.
[36 FR 22382, Nov. 25, 1971, as amended at 43 FR
1341, Jan. 9, 1978]
§ 20.9 Cost recovery.
Where it appears that, by reason of estimated
profits to be derived through the recovery of
wastes, through separate charges for use of the fa-
cility in question, or otherwise in the operation of
such facility, all or a portion of its costs may be
recovered over the period referred to in paragraph
(a)(6) of 26 CFR 1.169-2, the Regional Adminis-
trator shall so signify in the notice of certification.
Determinations as to the meaning of the term esti-
mated profits and as to the percentage of the cost
of a certified facility which will be recovered over
such period shall be made by the Secretary of the
Treasury, or his delegate: Provided, That in no
event shall estimated profits be deemed to arise
from the use or reuse by the applicant of recov-
ered waste.
§20.10 Revocation.
Certification hereunder may be revoked by the
Regional Administrator on 30 days written notice
to the applicant, served by certified mail, when-
ever the Regional Administrator shall determine
that the facility in question is no longer being op-
erated consistent with the §20.8(b) and (c) criteria
in effect at the time the facility was placed in
service. Within such 30-day period, the applicant
may submit to the Regional Administrator such
evidence, data or other written materials as the ap-
plicant may deem appropriate to show why the
certification hereunder should not be revoked. No-
tification of a revocation under this section shall
be given to the Secretary of the Treasury or his
delegate. See 26 CFR 1.169-4(b)(l).
APPENDIX A—GUIDELINES FOR CERTIFICATION
1. General.
2. Air Pollution Control Facilities.
a. Pollution control or treatment facilities normally eli-
gible for certification.
b. Air pollution control facility boundaries.
c. Examples of eligibility limits.
d. Replacement of manufacturing process by another
nonpolluting process.
3. Water Pollution Control Facilities.
a. Pollution control or treatment facilities normally eli-
gible for certification.
b. Examples of eligibility limits.
4. Multiple-purpose facilities.
5. Facilities serving both old and new plants.
6. State certification.
7. Dispersal of pollutants.
8. Profit-making facilities.
9. Multiple applications.
1. General. Section 2112 of the Tax Reform Act of
1976 (Pub. L. 94^455, October 4, 1976) amended section
169 of the Internal Revenue Code of 1954, "Amortization
of Pollution Control Facilities." The amendment made
permanent the rapid amortization provisions of section
704 of the Tax Reform Act of 1969 (Pub. L. 91-172, De-
cember 30, 1969) and redefined eligibility limits to allow
certification of facilities which prevent the creation or
emission of pollutants.
The law defines a certified pollution control facility as
a new identifiable treatment facility which is:
(a) Used in connection with a plant or other property
in operation before January 1, 1976, to abate or control
air or water pollution by removing, altering, disposing of,
storing, or preventing the creation or emission of pollut-
ants, contaminants, wastes, or heat;
(b) Constructed, reconstructed, erected or (if purchased)
first placed in service by the taxpayer after December 31,
1975;
(c) Not to significantly increase the output or capacity,
extend the useful life, alter the nature of the manufactur-
ing or production process or facility or reduce the total
operating costs of the operating unit of the plant or other
property most directly associated with the pollution con-
trol facility (as suggested by the legislative history, EPA
regulations define the term significant as any increase, re-
duction or extension greater than 5%); and
(d) Certified by both State and Federal authorities, as
provided in section 169(d)(l) (A) and (B) of the Internal
Revenue Code.
If the facility is a building, the statute requires that it
be exclusively devoted to pollution control. Most ques-
tions as to whether a facility is a building and, if so,
whether it is exclusively devoted to pollution control are
resolved by § 1.169-2(b)(2) of the Treasury Department
regulations.
Since a treatment facility is eligible only if it furthers
the general policies of the United States under the Clean
Air Act and the Clean Water Act, a facility will be cer-
tified only if its purpose is to improve the quality of the
air or water outside the plant. Facilities to protect the
health or safety of employees inside the plant are not eli-
gible.
Facilities installed before January 1, 1976, in plants
placed in operation after December 31, 1968, are ineli-
gible for certification under the statute. 26 U.S.C. 169.
2. Air pollution control facilities.
a. Pollution control or treatment facilities normally eli-
gible for certification. The following devices are illus-
trative of facilities for removal, alteration, disposal, stor-
age or preventing the creation or emission of air pollu-
tion:
(1) Inertial separators (cyclones, etc.).
(2) Wet collection devices (scrubbers).
(3) Electrostatic precipitators.
(4) Cloth filter collectors (baghouses).
(5) Director fired afterburners.
-------
Pt. 20, App. A
(6) Catalytic afterburners. should notify the Treasury Department of the profitable
(7) Gas absorption equipment. waste recovery involved. (See paragraph 8 below.)
(8) Vapor condensers. (5) Intermittent control systems. Measuring devices
(9) Vapor recovery systems. which inform the taxpayer that ambient air quality stand-
(10) Floating roofs for storage tanks. ards are being exceeded are not eligible for certification
(11) Fuel cleaning equipment. since they do not physically remove, alter, destroy, dis-
(12) Combinations of the above. pose of, store or prevent the creation or emission of pol-
(b) Air Pollution control facility boundaries. Most fa- lutants, but merely act as a signal to curtail operations. Of
cilities are systems consisting of several parts. A facility course, measuring devices used in connection with an eli-
need not start at the point where the gaseous effluent gible pollution control facility would be eligible.
leaves the last unit of the processing equipment, nor will d. Replacement of manufacturing process by another,
it always extend to the point where the effluent is emitted nonpolluting process. An installation does not qualify for
to the atmosphere or existing stack, breeching, ductwork certification where it uses a process known to be cleaner
or vent. It includes all the auxiliary equipment used to op- than an alternative, but which does not actually remove,
erate the control system, such as fans, blowers, ductwork, alter, destroy, dispose of, store or prevent the creation or
valves, dampers and electrical equipment. It also includes emission of pollutants by removing potential pollutants at
all equipment used to handle, store, transport or dispose any stage in the production process. For example, a mim-
of the collected pollutants. mally polluting electric induction furnace to melt cast iron
(c) Examples of eligibility limits. The amortization de- which replaces, or is installed instead of, a heavily pollut-
duction is limited to new identifiable treatment facilities ing iron cupola furnace would be ineligible for this reason
which remove, alter, destroy, dispose of, store, or prevent and because it is not an identifiable treatment facility.
the creation or emission of pollutants, contaminants or However, if the replacement equipment has an air pollu-
wastes. It is not available for all expenditures for air pol- tion control device added to it, the control device would
lution control and is limited to devices which are installed be eligible even though the process equipment would not.
for the purpose of pollution control and which actually re- For example, where a primary copper smelting reverbera-
move, alter, destroy, dispose of, store or prevent the ere- tory furnace is replaced by a flash smelting furnace, fol-
ation or emission of pollutants by removing potential pol- lowed by the installation of a contact sulfuric acid plant,
lutants at any stage of the production process. the acid plant would qualify since it is a control device
(1) Boiler modifications or replacements. Modifications not necessary to the production process. The flash smelt-
of boilers to accommodate cleaner fuels are not eligible mg furnace would not qualify because its purpose is to
for rapid amortization: e.g., removal of stokers from a produce copper matte.
coal-fired boiler and the addition of gas or oil burners. 3. Water Pollution Control Facilities.
The purpose of the burners is to produce heat, and they a. Pollution control or treatment facilities normally eli-
are not identifiable as treatment facilities nor do they pre- gible for certification. The following types of equipment
vent the creation or emission of pollutants by removing are illustrative of facilities to remove, alter, destroy, store
potential pollutants. A new gas or oil-fired boiler that re- or prevent the creation of water pollution:
places a coal-fired boiler would also be ineligible for cer- (1) Pretreatment facilities which neutralize or stabilize
tification. industrial or sanitary wastes, or both, from a point imme-
(2) Fuel processing. Eligible air pollution control facili- diately preceding the point of such treatment to the point
ties include preprocessing equipment which removes po- of disposal to, and acceptance by, a publicly-owned treat-
tential air pollutants from fuels before they are burned. A ment works. The necessary pumping and transmitting fa-
desulfurization facility would thus be eligible provided it cilities are also eligible.
is used in connection with the plant where the (2) Treatment facilities which neutralize or stabilize in-
desulfurized coal will be burned or is used as a central- dustrial or sanitary wastes, or both, to comply with Fed-
ized facility for one or more plants. However, fluidized eral, State or local effluent or water quality standards,
bed facilities would generally not be eligible for rapid from a point immediately preceding the point of such
amortization. Such facilities would almost certainly in- treatment to the point of disposal, including necessary
crease output or capacity, reduce total operating costs, or pumping and transmitting facilities, including those for re-
extend the useful life of the plant or other property by cycle or segregation of wastewater.
more than 5%, since the boiler itself would be the operat- (3) Ancillary devices and facilities such as lagoons,
ing unit of the plant most closely associated with the pol- ponds and structures for storage, recycle, segregation or
lution control facility. Where the Regional Office and the treatment, or any combination of these, of wastewaters or
taxpayer disagree as to the applicability of the 5% rule, wastes from a plant or other property.
the Regional office should nonetheless certify the facility (4) Devices, equipment or facilities constructed or in-
if it is otherwise eligible and leave the ultimate deter- stalled for the primary purpose of recovering a by-product
mination to the Treasury Department. The certification of the operation (saleable or otherwise) previously lost ei-
should alert Treasury to the possibility that the facility is ther to the atmosphere or to the waste effluent. Examples
ineligible for rapid amortization. are:
(3) Incinerators. The addition of an afterburner, sec- (A) A facility to concentrate and recover vaporous by-
ondary combustion chamber or particulate collector would products from a process stream for reuse as raw feedstock
be eligible as would any device added to effect more effi- or for resale, unless the estimated profits from resale ex-
cient combustion. ceed the cost of the facility (see paragraph 8 below).
(4) Collection devices used to collect products or proc- (B) A facility to concentrate or remove gunk or similar
ess material. In some manufacturing operations, devices tars or polymerized tar-like materials from the process
are used to collect product or process material, as in the waste effluent previously discharged in the plant effluents.
case of the manufacture of carbon black. The baghouse Removal may occur at any stage of the production proc-
would be eligible for certification, but the certification ess.
-------
Pt. 20, App. A
(C) A device used to extract or remove insoluble to EPA certification, EPA may not certify if the State has
constitutents from a solid or liquid by use of a selective denied certification for whatever reason.
solvent; an open or closed tank or vessel in which such It should be noted that certification of a facility does
extraction or removal occurs; a diffusion battery of tanks not constitute the personal warranty of the certifying offi-
or vessels for countercurrent decantation, extraction, or cial that the conditions of the statute have been met. EPA
leaching, etc. certification is binding on the Government only to the ex-
CD) A skimmer or similar device for removing grease, tent the submitted facts are accurate and complete.
oils and fat-like materials from the process or effluent 7. Dispersal of pollutants. Section 169 applies to facili-
stream. ties which remove, alter, destroy, dispose of, store or pre-
(b) Examples of eligibility limits. vent me creation or emission of pollutants—including
(1) In-plant process changes which may result in the re- heat- Facilities which merely disperse pollutants (such as
duction or elimination of pollution but which do not tal1 stacks) do not quallfy- However, there is no way to
themselves remove alter destroy dispose of store or dispose o/heat other than by transferring B.t.u.'s to the
prevent the creation of pollutants by removing potential environment. A cooling tower is therefore eligible for cer-
pollutants at some point in the process stream are not eh- tification provided it is used in connection with a pre-
gible for certification 1976 Plant A co°lmg P°nd or an addition to an outfall
(2) A device, piece of equipment or facility is not eligi- structure which results in a decrease in the amount by
ble if it is associated with or included in a stream for sub- whlch the temperature of the receiving water is raised and
surface injection of untreated or inadequately treated in- ^lch meets aPPli<=able State standards is likewise eligi-
dustrial or sanitary waste. ' „ , , , .
.,,,., _/-.,•• A c •,• ,-c c 8- Profit-making facilities. The statute denies rapid am-
4. Multiple-purpose facilities. A facility can qualify for . . . „ ,, . , ^ .,. .
•j L-- i- -.r -4. J? 4.- 4.1 4.1 ..1 ortization where the cost of pollution control facilities
rapid amortization if it serves a function other than the .... . , ~ . . . . . .
, r- ,, • , , • • , •, ,• x ,-*, , • will be recovered from profits derived through the recov-
abatement of pollution (unless it is a building). Otherwise, ,
. ,, • , , ,- • ,, • r- •, , ery or wastes or otherwise.
the effect might be to discourage installation of sensible \f f .,., 1 ,. 1 1 ,. ,. j r
,, . , ° ,.,... ~. „, __. . . If a facility recovers marketable wastes, estimated prof-
pollution abatement facilities in favor of less efficient sin- ^ Qn whkh are Mt sufficlent to recover the mtlre cost
gle-function facilities. f ,-, f .,., ,-, ,. ... , • f ,-, f .,., -,,
° of the facility, the amortization basis of the facility will
The regulations require applicants to state what per- fee reduced m accordance wlth Treasury Department regu-
centage of the cost of a facility is properly allocable to ^^ The responslblllty of the Reglonal offlces ls
its abatement function and to justify the allocation. The merdy tQ ldmtlfy for ±e Treasuly Department those
Regional Office will review these allocations, and the cer- cases m whlch estlmated flts wlll anse The Treasury
tification will inform the Treasury Department if the allo- Department will determine the amount of such profits and
cation appears to be incorrect. Although not generally the extent to wWch they can fee expected to result m cost
necessary or desireable, site inspections may be appro- recovery) but the EPA certification should inform the
pnate m cases involving large sums of money or unusual Treasury whether cost recovery is possible.
types of equipment. The phrase or otherwise also includes situations where
5. Facilities serving both old and new plants. The stat- the taxpayer is m the business of renting the facility for
ute provides that pollution control facilities must be used a fee or cnargmg for the treatment of waste. In such
m connection with a plant or other property m operation caseSj me facility may theoretically qualify for EPA cer-
before January 1, 1976. When a facility is used m con- tification. The decision as to the extent of its profitability
nection with both pre-1976 and newer property, it may ls for me Treasury Department. Situations may also arise
qualify for rapid amortization to the extent it is used m where use of a facility is furnished at no additional charge
connection with pre-1976 property. to a number of users, or to the public, as part of a pack-
Again, the applicant will submit a theory of allocation age of other services. In such cases, no profits will be
for review by the Reglonal Office. The usual method of deemed to arise from operation of the facility unless the
allocation is to compare the effluent capacity of the pre- other services included m the package are merely ancil-
1976 plant to the treatment capacity of the control facil- lary to use of the facility. Of course, the cost recovery
ity. For example, if the old plant has a capacity of 80 provision does not apply where a taxpayer merely recov-
umts of effluent (but an average output of 60 units), the ers the cost of a facility through general revenues; other-
new plant has a capacity of 40 units (but an average out- wise no profitable firm would ever be eligible for rapid
put of 20 units), and the control facility has a capacity amortization.
of 150 units, then 80/i5o of the cost of the control facility It should be noted that § 20.9 of the EPA regulation is
would be eligible for rapid amortization. not meant to affect general principles of Federal income
If a taxpayer presents a seemingly reasonable method tax law. An individual other than the title holder of a
of allocation different from the foregoing, Reglonal Office piece of property may be entitled to take depreciation de-
personnel should consult with the Office of Air Quality ductions on it if the arrangements by which such individ-
Planning and Standards or the Office of Water Planning ual has use of the property may, for all practical purposes,
and Standards, and with the Office of General Counsel. be viewed as a purchase. In any such case, the facility
6. State certification. To qualify for rapid amortization could qualify for full rapid amortization, notwithstanding
under section 169, a facility must first be certified by the the fact that the title holder charges a separate fee for the
State as having been installed "in conformity with the use of the facility, so long as the taxpayer—in such a
State program or requirements for abatement or control of case, the user—does not charge a separate fee for use of
water or atmospheric pollution or contamination." Sig- the facility.
nificantly, the statute does not say that the State must re- 9. Multiple applications. Under EPA regulations, a
quire that a facility be installed. If use of a facility will multiple application may be submitted by a taxpayer who
not actually contravene a State requirement, the State may applies for certification of substantially identical pollution
certify. However, since State certification is a prerequisite abatement facilities used in connection with substantially
-------
Pt. 20, App. A
identical properties. It is not contemplated that the mul- information (which may in some cases include portions of
tiple application option will be used with respect to facili- catalogs or process flow diagrams) which the certifying
ties in different States, since each such facility would re- official has previously received. Accordingly, material
quire a separate application for certification to the State fiiec[ wlm a ReglOnal Office of EPA may be incorporated
involved. EPA regulations also permit an applicant to in- by refererice only m an appllcation subsequently filed
corporate by reference in an application material con- wlth the same Reglonal office.
tained in an application previously filed. The purpose of
this provision is to avoid the burden of furnishing detailed [47 FR 38319, Aug. 31, 1982]
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PART 21—SMALL BUSINESS
Sec.
21.1 Scope.
21.2 Definitions.
21.3 Submission of applications.
21.4 Review of application.
21.5 Issuance of statements.
21.6 Exclusions.
21.7 [Reserved]
21.8 Resubmission of application.
21.9 Appeals.
21.10 Utilization of the statement.
21.11 Public participation.
21.12 State issued statements.
21.13 Effect of certification upon authority to enforce
applicable standards.
AUTHORITY: 15 U.S.C. 636, as amended by Pub. L.
92-500.
SOURCE: 42 FR 8083, Feb. 8, 1977, unless otherwise
noted.
§21.1 Scope.
This part establishes procedures for the issuance
by EPA of the statements, referred to in section
7(g) of the Small Business Act and section 8 of
the Federal Water Pollution Control Act Amend-
ments of 1972, to the effect that additions to or al-
terations in the equipment, facilities (including the
construction of pretreatment facilities and intercep-
tor sewers), or methods of operations of small
business concerns are necessary and adequate to
comply with requirements established under the
Federal Water Pollution Control Act, 33 U.S.C.
1151, et seq.
§21.2 Definitions.
(a) Small business concern means a concern de-
fined by section 2[3] of the Small Business Act,
15 U.S.C. 632, 13 CFR part 121, and regulations
of the Small Business Administration promulgated
thereunder.
(b) For purposes of paragraph 7(g)(2) of the
Small Business Act, necessary and adequate refers
to additions, alterations, or methods of operation
in the absence of which a small business concern
could not comply with one or more applicable
standards. This can be determined with reference
to design specifications provided by manufactur-
ers, suppliers, or consulting engineers; including,
without limitations, additions, alterations, or meth-
ods of operation the design specifications of which
will provide a measure of treatment or abatement
of pollution in excess of that required by the ap-
plicable standard.
(c) Applicable Standard means any requirement,
not subject to an exception under §21.6, relating
to the quality of water containing or potentially
containing pollutants, if such requirement is im-
posed by:
(1) The Act;
(2) EPA regulations promulgated thereunder or
permits issued by EPA or a State thereunder;
(3) Regulations by any other Federal Agency
promulgated thereunder;
(4) Any State standard or requirement as appli-
cable under section 510 of the Act;
(5) Any requirements necessary to comply with
an areawide management plan approved pursuant
to section 208(b) of the Act;
(6) Any requirements necessary to comply with
a facilities plan developed under section 201 of
the Act (see 35 CFR, subpart E);
(7) Any State regulations or laws controlling the
disposal of aqueous pollutants that may affect
groundwater.
(d) Regional Administrator means the Regional
Administrator of EPA for the region including the
State in which the facility or method of operation
is located, or his designee.
(e) Act means the Federal Water Pollution Con-
trol Act, 33 U.S.C. 1151, et seq.
(f) Pollutant means dredged spoil, solid waste,
incinerator residue, sewage, garbage, sewage
sludge, munitions, chemical wastes, biological ma-
terials, radioactive materials, heat, wrecked or dis-
carded equipment, rock, sand, cellar dirt and in-
dustrial, municipal, and agricultural waste dis-
charged into water. For the purposes of this sec-
tion, the term also means sewage from vessels
within the meaning of section 312 of the Act.
(g) Permit means any permit issued by either
EPA or a State under the authority of section 402
of the Act; or by the Corps of Engineers under
section 404 of the Act.
(h) State means a State, the District of Colum-
bia, the Commonwealth of Puerto Rico, the Virgin
Islands, Guam, American Samoa, and the Trust
Territory of the Pacific Islands.
Comment: As the SBA does not extend its programs to
the Canal Zone, the listing of the Canal Zone as a State
for the purposes of meeting a requirement imposed by
section 311 or 312 of the Act is not effective in this regu-
lation.
(i) Statement means a written approval by EPA,
or if appropriate, a State, of the application.
(j) Facility means any building, structure, instal-
lation or vessel, or portion thereof.
(k) Construction means the erection, building,
acquisition, alteration, remodeling, modification,
improvement, or extension of any facility; Pro-
vided, That it does not mean preparation or under-
taking of: Plans to determine feasibility; engineer-
ing, architectural, legal, fiscal, or economic inves-
tigations or studies; surveys, designs, plans,
writings, drawings, specifications or procedures.
Comment: This provision would not later preclude
SBA financial assistance being utilized for any planning
or design effort conducted previous to construction.
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§21.3
(1) The term additions and alterations means the
act of undertaking construction of any facility.
(m) The term methods of operation means the
installation, emplacement, or introduction of mate-
rials, including those involved in construction, to
achieve a process or procedure to control: Surface
water pollution from non-point sources—that is,
agricultural, forest practices, mining, construction;
ground or surface water pollution from well, sub-
surface, or surface disposal operations; activities
resulting in salt water intrusion; or changes in the
movement, flow, or circulation of navigable or
ground waters.
(n) The term vessel means every description of
watercraft or other artificial contrivance used, or
capable of being used, as a means of transpor-
tation on the navigable waters of the United States
other than a vessel owned or operated by the Unit-
ed States or a State or a political subdivision
thereof, or a foreign nation; and is used for com-
mercial purposes by a small business concern.
(o) EPA means the Environmental Protection
Agency.
(p) SBA means the Small Business Administra-
tion.
(q) Areawide agency means an areawide man-
agement agency designated under section
208(c)(l) of the Act.
(r) Lateral sewer means a sewer which connects
the collector sewer to the interceptor sewer.
(s) Interceptor sewer means a sewer whose pri-
mary purpose is to transport wastewaters from col-
lector sewers to a treatment facility.
§21.3 Submission of applications.
(a) Applications for the statement described in
§21.5 of this part shall be made to the EPA Re-
gional Office for the region covering the State in
which the additions, alterations, or methods of op-
eration covered by the application are located. A
listing of EPA Regional Offices, with their mailing
addresses, and setting forth the States within each
region is as follows:
Region
Address
State
Regional Administrator, region I, EPA, John F. Kennedy Fed-
eral Bldg., room 2303, Boston, MA 02203.
Regional Administrator, region II, EPA, 26 Federal Plaza,
room 908, New York, NY 10007.
Regional Administrator, region III, EPA, Curtis Bldg., 6th and
Walnut Sis., Philadelphia, PA 19106.
Regional Administrator, region IV, EPA, 345 Courtland St.
NE, Atlanta, GA 30308.
Regional Administrator, region V, EPA, 77 West Jackson
Boulevard, Chicago, IL 60604.
Regional Administrator, region VI, EPA, 1201 Elm St., 27th
floor, First International Bldg., 70 Dallas, TX 75201.
Regional Administrator, region VII, EPA, 1735 Baltimore
Ave., Kansas City, MO 64108.
Regional Administrator, region VIII, EPA, 1860 Lincoln St.,
Suite 900, Denver, CO 80203.
Regional Administrator, region IX, EPA, 100 California St.,
San Francisco, CA 94111.
Regional Administrator, region X, EPA, 1200 6th Ave., Se-
attle, WA98101.
Connecticut, Maine, Massachusetts, New Hamp-
shire, Rhode Island, and Vermont.
New Jersey, New York, Virgin Islands, and Puerto
Rico.
Delaware, District of Columbia, Pennsylvania, Mary-
land, Virginia, and West Virginia.
Alabama, Florida, Georgia, Kentucky, Mississippi,
North Carolina, South Carolina, and Tennessee.
Illinois, Indiana, Michigan, Minnesota, Ohio, and
Wsconsin.
Arkansas, Louisiana, New Mexico, Oklahoma, and
Texas.
Iowa, Kansas, Missouri, and Nebraska.
Colorado, Montana, North Dakota, South Dakota,
Utah, and Wyoming.
Arizona, California, Hawaii, Nevada, Guam, Amer-
ican Samoa, and Trust Territory of the Pacific Is-
lands.
Alaska, Idaho, Oregon, and Washington.
(b) An application described in paragraph (1) of
§21.3(c) may be submitted directly to the appro-
priate State, where a State has assumed respon-
sibility for issuing the statement. Information on
whether EPA has retained responsibility for certifi-
cation or whether it has been assumed by the State
may be obtained from either the appropriate Re-
gional Administrator or the State Water Pollution
Control Authority in which the facility is located.
(c) An application need be in no particular
form, but it must be in writing and must include
the following:
(1) Name of applicant (including business name,
if different) and mailing address. Address of the
affected facility or operation, if different, should
also be included.
(2) Signature of the owner, partner, or principal
executive officer requesting the statement.
(3) The Standard Industrial Classification num-
ber for the business for which an application is
being submitted. Such SIC number shall be ob-
tained from the Standard Industrial Classification
Manual, 1972 edition. If the applicant does not
know the SIC for the business, a brief description
of the type of business activity being conducted
should be provided.
(4) A description of the process or activity gen-
erating the pollution to be abated by the additions,
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§21.3
alterations, or methods of operation covered by the
application, accompanied by a schematic diagram
of the major equipment and process, where prac-
ticable.
(5) A specific description of the additions, alter-
ations, or methods of operation covered by the ap-
plication. Where appropriate, such description will
include a summary of the facility construction to
be undertaken; a listing of the major equipment to
be purchased or utilized in the operation of the fa-
cility; the purchase of any land or easements nec-
essary to the operation of the facility; and any
other items that the applicant deems pertinent. Any
information that the applicant considers to be a
trade secret shall be identified as such.
(6) A declaration of the requirement, or require-
ments, for compliance with which the alterations,
additions, or methods of operation are claimed to
be necessary and adequate.
(i) If the requirement results from a permit is-
sued by EPA or a State under section 402 of the
Act, the permit number shall be included.
(ii) If the requirement results from a permit is-
sued by EPA or a State for a publicly-owned treat-
ment works, the municipal permit number shall be
included along with a written declaration from the
authorized agent for the publicly owned treatment
works that received the permit detailing the spe-
cific pretreatment requirements being placed upon
the applicant.
(iii) If the requirement initiates from a plan to
include the applicant's effluent in an existing mu-
nicipal sewer system through the construction of
lateral or interceptor sewers, a written declaration
from the authorized agent for the publicly owned
treatment works shall be included noting that the
sewer construction is consistent with the integrity
of the system; will not result in the capacity of the
publicly owned treatment works being exceeded;
and where applicable, is consistent with a facilities
plan developed under section 201 of the Act (see
35 CFR part 917).
(iv) If the requirement results from a State
order, regulation, or other enforceable authority
controlling pollution from a vessel as provided by
section 312(f)(3) of the Act, a written declaration
from the authorized agent of the State specifying
the control measures being required of the appli-
cant shall be included.
(v) If the requirement is a result of a permit is-
sued by the Corps of Engineers related to permits
for dredged or fill material as provided by section
404 of the Act, a copy of the permit as issued
shall be included.
(vi) If the requirement results from a standard
of performance for control of sewage from vessels
as promulgated by the Coast Guard under section
312(b) of the Act, the vessel registration number
or documentation number shall be included.
(vii) If the requirement results from a plan to
control or prevent the discharge or spill of pollut-
ants as identified in section 311 of the Act, the
title and date of that plan shall be included.
(viii) If the requirement is the result of an order
by a State or an areawide management agency
controlling the disposal of aqueous pollutants so as
to protect groundwater, a copy of the order as is-
sued shall be included.
(7) Additionally, if the applicant has received
from a State Water Pollution Control Agency a
permit issued by the State within the preceding
two years, and if such permit was not issued under
the authorities of section 402 of the Act, and
where the permit directly relates to abatement of
the discharge for which a statement is sought, a
copy of that permit shall also be included.
Comment: Some States under State permit programs,
separate and distinct from the NPDES permit program
under the Act, conduct an engineering review of the fa-
cilities or equipment that would be used to control pollu-
tion. The results of such a review would be materially
helpful in determining the necessity and adequacy of any
alterations or additions.
(8) Any written information from a manufac-
turer, supplier, or consulting engineer, or similar
independent source, concerning the design capa-
bilities of the additions or alterations covered by
the application, including any warranty limitations
or certifications obtained from or provided by such
sources which would bear upon these design or
performance capabilities. The Regional Adminis-
trator may waive the requirement for this para-
graph if it appears that there is no independent
source for the information described herein; as, for
example, when the applicant has designed and
constructed the additions or alterations with in-
house capability.
(9) An estimated schedule for the construction
or implementation of the alterations, additions, or
methods of operation.
(10) An estimated cost of the alterations, addi-
tions, or methods of operation, and where prac-
ticable, the individual costs of major elements of
the construction to be undertaken.
(11) Information on previously received loan as-
sistance under this section for the facility or meth-
od of operation, including a description and dates
of the activity funded.
(d) A separate application must be submitted for
every addition, alteration, or method of operation
that is at a separate geographical location from the
initial application.
Comment: As an example, a chain has four dry clean-
ing establishments scattered through a community. A sep-
arate application would have to be filed for each.
(e) No statement shall be approved for any ap-
plication that has not included the information or
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§21.4
declaration requirements imposed by paragraph
(c)(6)of §21.3.
(f) All applications are to be submitted in dupli-
cate.
(g) All applications are subject to the provisions
of 18 U.S.C. 1001 regarding prosecution for the
making of false statements or the concealing of
material facts.
(h) Instructional guidelines to assist in the sub-
mission of applications for EPA certification are
available from EPA or a certifying State.
[42 FR 8083, Feb. 8, 1977, as amended at 62 FR 1833,
Jan. 14, 1997]
§21.4 Review of application.
(a) The Regional Administrator or his designee
will conduct a review of the application. This re-
view will consist of a general assessment of the
adequacy of the proposed alterations, additions, or
methods of operation. The review will corroborate
that the proposed alterations, additions, or methods
of operation are required by an applicable stand-
ard. The review will identify any proposed alter-
ations, additions, or methods of operation that are
not required by an applicable standard, or that are
extraneous to the achievement of an applicable
standard.
(b) The assessment of adequacy will be con-
ducted to ensure that the proposed additions, alter-
ations, or methods of operation are sufficient to
meet one or more applicable standards whether
alone or in conjunction with other plans. The as-
sessment will not generally examine whether other
alternatives exist or would be more meritorious
from a cost-effective, efficiency, or technological
standpoint.
(c) An application which proposes additions, al-
terations, or methods of operation whose design,
in anticipation of a future requirement, will
achieve a level of performance above the require-
ments imposed by a presently applicable standard
shall be reviewed and approved by EPA or a State
without prejudice. The amount of financial assist-
ance for such an application will be determined by
SBA.
(d) The Regional Administrator shall retain one
copy of the application and a summary of the ac-
tion taken on it. Upon completion of his review,
the Regional Administrator shall return the origi-
nal application along with any other supporting
documents or information provided to the appli-
cant along with a copy to the appropriate SBA
district office for processing.
§21.5 Issuance of statements.
(a) Upon application by a small business con-
cern pursuant to §21.3 the Regional Administrator
will, if he finds that the additions, alterations, or
methods of operation covered by the application
are adequate and necessary to comply with an ap-
plicable standard, issue a written statement to the
applicant to that effect, within 45 working days
following receipt of the application, or within 45
working days following receipt of all information
required to be submitted pursuant to §21.3(c),
whichever is later. Such a written statement shall
be classified as a full approval. If an application
is deficient in any respect, with regard to the spec-
ifications for submission listed in §21.3(c), the
Regional Administrator shall promptly, but in no
event later than 30 working days following receipt
of the application, notify the applicant of such de-
ficiency.
(b) (1) If an application contains proposed alter-
ations, additions, or methods of operation that are
adequate and necessary to comply with an applica-
ble standard but also contains proposed alterations,
additions, or methods of operation that are not
necessary to comply with an applicable standard,
the Regional Administrator shall conditionally ap-
prove the application within the time limit speci-
fied in paragraph (a) of this section, and shall also
identify in the approval those alterations, addi-
tions, or methods of operation that he determines
are not necessary.
(2) Conditional approvals as contained in a
statement will satisfy the requirements for ap-
proval by EPA for those alterations, additions, or
methods of operation determined to be necessary
and adequate. Such conditional approvals may be
submitted to SBA in satisfaction of the require-
ments of section 7(g)(2)(B) of the Small Business
Act.
(3) Conditional approvals will not satisfy the re-
quirements for approval by EPA for those alter-
ations, additions, or methods of operation included
in the application that are determined not to be
necessary. Unnecessary alterations, additions, or
methods of operation are those which are extra-
neous to the achievement of an applicable stand-
ard.
(4) Conditional approvals may be appealed to
the Deputy Administrator by an applicant in ac-
cordance with the procedures identified in §21.8.
(c) If the Regional Administrator determines
that the additions, alterations, or methods of oper-
ation covered by an application are not necessary
and adequate to comply with an applicable stand-
ard, he shall disapprove the application and shall
so advise the applicant of such determination with-
in the time limit specified in paragraph (a) of this
section, and shall state in writing the reasons for
his determination.
(d) Any application shall be disapproved if the
Regional Administrator determines that the pro-
posed addition, alteration, or method of operation
would result in the violation of any other require-
ment of this Act, or of any other Federal or State
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§21.7
law or regulation with respect to the protection of
the environment.
(e) An applicant need not demonstrate that its
facility or method of operation will meet all appli-
cable requirements established under the Act. The
applicant need only demonstrate that the additions,
alterations, or methods of operation will assist in
ensuring compliance with one or more of the ap-
plicable standards for which financial assistance is
being requested.
Comment: As an example, a small business has two
discharge pipes—one for process water, the other for
cooling water. The application for loan assistance is to
control pollution from the process water discharge. How-
ever, EPA or a State may review the applicant's situation
and identify for SBA that the applicant is subject to other
requirements for which the applicant has not sought as-
sistance.
(f) An application should not include major al-
ternative designs significantly differing in scope,
concept, or capability. It is expected that the appli-
cant at the time of submission will have selected
the most appropriate or suitable design for the ad-
dition, alteration, or method of operation.
(g) EPA will not provide assistance in the form
of engineering, design, planning or other technical
services to any applicant in the preparation of his
application.
(h) An applicant may be issued a certification
for additions, alterations, or methods of operation
constructed or undertaken before loan assistance
was applied for by the applicant. Any such appli-
cations would be reviewed by SBA for eligibility
under SBA criteria, including refinancing and loan
exposure.
§21.6 Exclusions.
(a) Statements shall not be issued for applica-
tions in the following areas:
(1) Local requirements. Applications for state-
ments for additions, alterations, or methods of op-
eration that result from requirements imposed by
municipalities, counties or other forms of local or
regional authorities and governments, except for
areawide management agencies designated and ap-
proved under section 208 of the Act, shall not be
approved; except for those requirements resulting
from the application of pretreatment requirements
under section 307(b) of the Act; or those resulting
from an approved project for facilities plans, and
developed under section 201 of the Act. (See 35
CFR, subpart E); or under a delegation of author-
ity under the Act.
(2) Cost recovery and user charges. Applica-
tions for statements involving a request for finan-
cial assistance in meeting revenue and service
charges imposed upon a small business by a mu-
nicipality conforming to regulations governing a
user charge or capital cost system under section
204(b)(2) of the Act (see 35 CFR 925-11 and
925-12) shall not be approved.
(3) New facility sewer construction. Applica-
tions for statements involving projects that involve
the construction of a lateral, collection, or inter-
ceptor sewer, at a facility that was not in existence
on October 18, 1972, shall not be approved. Ap-
plications for additions, alterations, or methods of
operation for new facilities that do not involve
sewer construction are not affected by this pre-
clusion. Further, if an applicant is compelled to
move as a result of a relocation requirement but
operated at the facility prior to October 18, 1972,
the cost of construction for a lateral, collection, or
interceptor sewer can be approved for the new, re-
located site. For the purpose of this exclusion lat-
eral, collection, or interceptor sewer is determined
as any sewer transporting waste from a facility or
site to any publicly owned sewer.
(4) Other non-water related pollution abatement
additions, alterations, or methods of operation
which are not integral to meeting the requirements
of the Act, although they may be achieving the re-
quirements of another Federal or State law or reg-
ulation.
Comment: An example would be where stack emission
controls were required on equipment that operated the
water pollution control facility. This emission control
equipment as an integral part of the water pollution con-
trol systems would be approvable. However, emission
control equipment for a general purpose incinerator that
only incidentally burned sewage sludge would not be ap-
provable. The general purpose incinerator might also re-
ceive loan assistance but under separate procedures than
those set out for water pollution control.
(5) Privately owned treatment facility service or
user costs. Applications for statements involving
financial assistance in meeting user cost or fee
schedules related to participating in a privately
owned treatment facility not under the ownership
or control of the applicant shall not be approved.
(6) Operation and maintenance charges. Appli-
cations for statements containing a request for fi-
nancial assistance in meeting the operations and
maintenance costs of operating the applicant's ad-
ditions, alterations, or methods of operation shall
not be approved for any elements relating to such
areas of cost.
(7) Evidence of financial responsibility. Appli-
cations for statements containing a request for fi-
nancial assistance in meeting any requirements re-
lating to evidence of financial responsibility as
provided in section 311(p) of the Act shall not be
approved.
§21.7 [Reserved]
Comment: Applications for a statement resulting from
a requirement to control pollution from non-point sources
-------
§21.8
as identified in section 304(e)(2)(A-F) of the Act and de-
scribed in §21.2(m) will not presently be issued a state-
ment under §21.5 unless the requirement is established
through a permit under section 402. There is no require-
ment under the current Act that the Federal government
control pollution from such sources, and the nature and
scope of State or areawide management agency proposals
or programs to control such sources cannot be determined
at this time. As State and areawide plans for control of
nonpoint sources being prepared under section 208 of the
Act, will not be completed for several years, this section
is being reserved pending a future determination on the
eligibility of applications relating to non-profit sources to
receive a statement under this part.
§21.8 Resubmission of application.
(a) A small business concern whose application
is disapproved may submit an amended or cor-
rected application to the Regional Administrator at
any time. The applicant shall provide the date of
any previous application.
§21.9 Appeals.
(a) An applicant aggrieved by a determination
of a Regional Administrator under §21.5 may ap-
peal in writing to the Deputy Administrator of the
Environmental Protection Agency, within 30 days
of the date of the determination from which an ap-
peal is taken; Provided, That the Deputy Adminis-
trator may, on good cause shown, accept an appeal
at a later time.
(b) The applicant in requesting such an appeal
shall submit to the Deputy Administrator a copy
of the complete application as reviewed by the Re-
gional Administrator.
(c) The applicant should also provide informa-
tion as to why it believes the determination made
by the Regional Administrator to be in error.
(d) The Deputy Administrator shall act upon
such appeal within 60 days of receipt of any com-
plete application for a review of the determination.
(e) Where a State has been delegated certifi-
cation authority, the procedure for appeals shall be
established in the State submission required in
§21.12.
§ 21.10 Utilization of the statement.
(a) Statements issued by the Regional Adminis-
trator will be mailed to the small business appli-
cant and to the district office of the Small Busi-
ness Administration serving the geographic area
where the business is located. It is the responsibil-
ity of the applicant to also forward the statement
to SBA as part of the application for a loan.
(b) Any statement or determination issued under
§21.5 shall not be altered, modified, changed, or
destroyed by any applicant in the course of pro-
viding such statement to SBA. To do so can result
in the revocation of any approval contained in the
statement and subject the applicant to the penalties
provided in 18 U.S.C. 1001.
(c) If an application for which a statement is is-
sued under §21.5 is substantively changed in
scope, concept, design, or capability prior to the
approval by SBA of the financial assistance re-
quested, the statement as issued shall be revoked.
The applicant must resubmit a revised application
under §21.3 and a new review must be conducted.
Failure to meet the requirements of this paragraph
could subject the applicant to the penalties speci-
fied in 18 U.S.C. 1001 and 18 U.S.C. 286. A sub-
stantive change is one which materially affects the
performance or capability of the proposed addi-
tion, alteration, or method of operation.
(d) An agency, Regional Administrator, or State
issuing a statement under §21.5 shall retain a
complete copy of the application for a period of
five years after the date of issuance of the state-
ment. The application shall be made available
upon request for inspection or use at any time by
any agency of the Federal Government.
(e) No application for a statement or for finan-
cial assistance under this section or statement is-
sued under this section shall constitute or be con-
strued as suspending, modifying, revising, abrogat-
ing or otherwise changing the requirements im-
posed on the applicant by the terms, conditions,
limitations or schedules of compliance contained
in an applicable standard, permit, or other provi-
sion established or authorized under the Act or
any State or local statute, ordinance or code.
(f) No statement as issued and reviewed shall be
construed as a waiver to the applicants fulfilling
the requirements of any State or local law, statute,
ordinance, or code (including building, health, or
zoning codes).
(g) An amended application need not be submit-
ted if the facility, property, or operation for which
the statement is issued is sold, leased, rented, or
transferred by the applicant to another party prior
to approval by SBA of the financial assistance:
Provided, That there is or will be no substantive
change in the scope, concept, design, capability, or
conduct of the facility or operation.
Comment: However, eligibility for financial assistance
would be reexamined by SBA with regard to any such
sale, lease, rental or transfer.
(h) The Regional Administrator may include in
any statement a date of expiration, after which
date the approval by the Regional Administrator
contained in the statement shall no longer apply.
The date of expiration shall not become effective
if the applicant has submitted the statement to the
SBA, prior to the date of expiration, as part of the
application for financial assistance.
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§21.12
§21.11 Public participation.
(a) Applications shall not generally be subject to
public notice, public comment, or public hearings.
Applications during the period of review as stated
in §21.5, or during the period of appeal as pro-
vided in §21.8, shall be available for public in-
spection. Approved applications as provided in
§21.10(d) shall be available for public inspection
at all times during the five year period.
(b) The Regional Administrator, if he believes
that the addition, alteration, or method of oper-
ation may adversely and significantly affect an in-
terest of the public, shall provide for a public no-
tice and/or public hearing on the application. The
public notice and/or public hearing shall be con-
ducted in accordance with the procedures specified
for a permit under 40 CFR 125.32 and 125.34(b).
(c) Where the applicant is able to demonstrate
to the satisfaction of the Regional Administrator
that disclosure of certain information or parts
thereof as provided in §21.3(c)(5) would result in
the divulging of methods or processes entitled to
protection as trade secrets, the Regional Adminis-
trator shall treat the information or the particular
part as confidential in accordance with the pur-
poses of section 1905 of Title 18 of the United
States Code and not release it to any unauthorized
person. Provided, however, That if access to such
information is subsequently requested by any per-
son, there will be compliance with the procedures
specified in 40 CFR part 2. Such information may
be disclosed to other officers, employees, or au-
thorized representatives of the United States con-
cerned with carrying out the Act or when relevant
in any proceeding under the Act.
§21.12 State issued statements.
(a) Any State after the effective date of these
regulations may submit to the Regional Adminis-
trator for his approval an application to conduct a
program for issuing statements under this section.
(1) A State submission shall specify the organi-
zational, legal, financial, and administrative re-
sources and procedures that it believes will enable
it to conduct the program.
(2) The State program shall constitute an equiv-
alent effort to that required of EPA under this sec-
tion.
(3) The State organization responsible for con-
ducting the program should be the State water pol-
lution control agency, as defined in section 502 of
the Act.
(4) The State submission shall propose a proce-
dure for adjudicating applicant appeals as provided
under §21.9.
(5) The State submission shall identify any ex-
isting or potential conflicts of interest on the part
of any personnel who will or may review or ap-
prove applications.
(i) A conflict of interest shall exist where the
reviewing official is the spouse of or dependent
(as defined in the Tax Code, 26 U.S.C. 152) of an
owner, partner, or principal officer of the small
business, or where he has or is receiving from the
small business concern applicant 10 percent of
gross personal income for a calendar year, except
that it shall mean 50 percent gross personal in-
come for a calendar year if the recipient is over
60 years of age and is receiving such portion pur-
suant to retirement, pension, or similar arrange-
ments.
(ii) If the State is unable to provide alternative
parties to review or approve any application sub-
ject to conflict of interest, the Regional Adminis-
trator shall review and approve the application.
(b) The Regional Administrator, within 60 days
after such application, shall approve any State pro-
gram that conforms to the requirements of this
section. Any such approval shall be after sufficient
notice has been provided to the Regional Director
of SBA.
(c) If the Regional Administrator disapproves
the application, he shall notify the State, in writ-
ing, of any deficiency in its application. A State
may resubmit an amended application at any later
time.
(d) Upon approval of a State submission, EPA
will suspend all review of applications and issu-
ance of statements for small businesses in that
State, pending transferral. Provided, however, That
in the event of a State conflict of interest as iden-
tified in §21.12(a)(4) of this section, EPA shall re-
view the application and issue the statement.
(e) Any applications shall, if received by an
EPA Regional Office, be forwarded promptly to
the appropriate State for action pursuant to section
7(g)(2) of the Small Business Act and these regu-
lations.
(f) (1) EPA will generally not review or ap-
prove individual statements issued by a State.
However, SBA, upon receipt and review of a State
approved statement may request the Regional Ad-
ministrator of EPA to review the statement. The
Regional Administrator, upon such request can
further approve or disapprove the State issued
statement, in accordance with the requirements of
§21.5.
(2) The Regional Administrator will periodically
review State program performance. In the event of
State program deficiencies the Regional Adminis-
trator will notify the State of such deficiencies.
(3) During that period that any State's program
is classified as deficient, statements issued by a
State shall also be sent to the Regional Adminis-
trator for review. The Regional Administrator shall
notify the State, the applicant, and the SBA of any
determination subsequently made, in accordance
with §21.5, on any such statement.
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§21.13
(i) If within 60 days after notice of such defi-
ciencies has been provided, the State has not taken
corrective efforts, and if the deficiencies signifi-
cantly affect the conduct of the program, the Re-
gional Administrator, after sufficient notice has
been provided to the Regional Director of SBA,
shall withdraw the approval of the State program.
(ii) Any State whose program is withdrawn and
whose deficiencies have been corrected may later
reapply as provided in §21.12(a).
(g) Funds appropriated under section 106 of the
Act may be utilized by a State agency authorized
to receive such funds in conducting this program.
§21.13 Effect of certification upon au-
thority to enforce applicable stand-
ards.
The certification by EPA or a State for SBA
Loan purposes in no way constitutes a determina-
tion by EPA or the State that the facilities certified
(a) will be constructed within the time specified
by an applicable standard or (b) will be con-
structed and installed in accordance with the plans
and specifications submitted in the application,
will be operated and maintained properly, or will
be applied to process wastes which are the same
as described in the application. The certification in
no way constitutes a waiver by EPA or a State of
its authority to take appropriate enforcement action
against the owner or operator of such facilities for
violations of an applicable standard.
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PART 22—CONSOLIDATED RULES
OF PRACTICE GOVERNING THE
ADMINISTRATIVE ASSESSMENT OF
CIVIL PENALTIES AND THE REV-
OCATION OR SUSPENSION OF
PERMITS
Subpart A—General
Sec.
22.01 Scope of these rules.
22.02 Use of number and gender.
22.03 Definitions.
22.04 Powers and duties of the Environmental Appeals
Board, the Regional Administrator, the Regional Ju-
dicial Officer, and the Presiding Officer; disqualifica-
tion.
22.05 Filing, service, and form of pleadings and docu-
ments.
22.06 Filing and service of rulings, orders, and deci-
sions.
22.07 Computation and extension of time.
22.08 Ex parte discussion of proceeding.
22.09 Examination of documents filed.
Subpart B—Parties and Appearances
22.10 Appearances.
22.11 Intervention.
22.12 Consolidation and severance.
Subpart C—Prehearing Procedures
22.13 Issuance of complaint.
22.14 Content and amendment of the complaint.
22.15 Answer to the complaint.
22.16 Motions.
22.17 Default order.
22.18 Informal settlement; consent agreement and order.
22.19 Prehearing conference.
22.20 Accelerated decision; decision to dismiss.
Subpart D—Hearing Procedure
22.21 Scheduling the hearing.
22.22 Evidence.
22.23 Objections and offers of proof.
22.24 Burden of presentation; burden of persuasion.
22.25 Filing the transcript.
22.26 Proposed findings, conclusions, and order.
Subpart E—Initial Decision and Motion to
Reopen a Hearing
22.27 Initial decision.
22.28 Motion to reopen a hearing.
Subpart F—Appeals and Administrative
Review
22.29 Appeal from or review of interlocutory orders or
rulings.
22.30 Appeal from or review of initial decision.
Subpart G—Final Order on Appeal
22.31 Final order on appeal.
22.32 Motion to reconsider a final order.
Subpart H—Supplemental Rules
22.33 Supplemental rules of practice governing the ad-
ministrative assessment of civil penalties under the
Toxic Substances Control Act.
22.34 Supplemental rules of practice governing the ad-
ministrative assessment of civil penalties under Title
II of the Clean Air Act.
22.35 Supplemental rules of practice governing the ad-
ministrative assessment of civil penalties under the
Federal Insecticide, Fungicide, and Rodenticide Act.
22.36 Supplemental rules of practice governing the ad-
ministrative assessment of civil penalties and the rev-
ocation or suspension of permits under the Marine
Protection, Research, and Sanctuaries Act.
22.37 Supplemental rules of practice governing the ad-
ministrative assessment of civil penalties under the
Solid Waste Disposal Act.
22.38 Supplemental rules of practice governing the ad-
ministrative assessment of Class II penalties under
the Clean Water Act.
22.39 Supplemental rules of practice governing the ad-
ministrative assessment of administrative penalties
under section 109 of the Comprehensive Environ-
mental Response, Compensation, and Liability Act of
1980, as amended.
22.40 Supplemental rules of practice governing the ad-
ministrative assessment of administrative penalties
under section 325 of the Emergency Planning and
Community Right-To-Know Act of 1986 (EPCRA).
22.41 Supplemental rules of practice governing the ad-
ministrative assessment of civil penalties under Title
II of the Toxic Substances Control Act, enacted as
section 2 of the Asbestos Hazard Emergency Re-
sponse Act (AHERA).
22.42 Supplemental rules of practice governing the ad-
ministrative assessment of civil penalties for viola-
tions of compliance orders issued under Part B of the
Safe Drinking Water Act.
22.43 Supplemental rules of practice governing the ad-
ministrative assessment of civil penalties under sec-
tion 113(d)(l) of the Clean Air Act.
APPENDIX TO PART 22—ADDRESSES OF EPA REGIONAL
OFFICES
AUTHORITY: 15 U.S.C. 2615; 42 U.S.C. 7413(d),
7524(c), 7545(d), 7547(d), 7601 and 7607(a); 7 U.S.C.
136(1) and (m); 33 U.S.C. 1319, 1415 and 1418; 42
U.S.C. 6912, 6928 and 6991(e); 42 U.S.C. 9609; 42
U.S.C. 11045.
SOURCE: 45 FR 24363, Apr. 9, 1980, unless otherwise
noted.
Subpart A—General
§22.01 Scope of these rules.
(a) These rules of practice govern all adjudica-
tory proceedings for:
(1) The assessment of any civil penalty con-
ducted under section 14(a) of the Federal Insecti-
cide, Fungicide and Rodenticide Act as amended
(7 U.S.C. 1361(a));
-------
§22.02
(2) The assessment of any administrative pen-
alty under sections 113(d)(l), 205(c), 211(d) and
213(d) of the Clean Air Act, as amended (CAA)
(42 U.S.C. 7413(d)(l), 7524(c), 7545(d) and
7547(d)).
(3) The assessment of any civil penalty or for
the revocation or suspension of any permit con-
ducted under section 105 (a) and (f) of the Marine
Protection, Research, and Sanctuaries Act as
amended (33 U.S.C. 1415(a));
(4) The issuance of a compliance order or the
issuance of a corrective action order, the suspen-
sion or revocation of authority to operate pursuant
to section 3005(e) of the Solid Waste Disposal
Act, or the assessment of any civil penalty under
sections 3008, 9006 and 1 1005 of the Solid Waste
Disposal Act, as amended (42 U.S.C. 6928,
699 l(e) and 6992(d)), except as provided in 40
CFR parts 24 and 124.
(5) The assessment of any civil penalty con-
ducted under section 16(a) of the Toxic Sub-
stances Control Act (15 U.S.C. 2615(a));
(6) The assessment of any Class II penalty
under section 309(g) of the Clean Water Act (33
U.S.C. 1319(g));
(7) The assessment of any administrative pen-
alty under section 109 of the Comprehensive Envi-
ronmental Response, Compensation, and Liability
Act of 1980, as amended (42 U.S.C. 9609);
(8) The assessment of any administrative pen-
alty under section 325 of the Emergency Planning
and Community Right-To-Know Act of 1986
(EPCRA) (42 U.S.C. 11045).
(9) The assessment of any civil penalty con-
ducted under section 1414(g)(3)(B) of the Safe
Drinking Water Act as amended (42 U.S.C. 300g-
(b) The Supplemental rules of practice set forth
in subpart H establish rules governing those as-
pects of the proceeding in question which are not
covered in subparts A through G, and also specify
procedures which supersede any conflicting proce-
dures set forth in those subparts.
(c) Questions arising at any stage of the pro-
ceeding which are not addressed in these rules or
in the relevant supplementary procedures shall be
resolved at the discretion of the Administrator, Re-
gional Administrator, or Presiding Officer, as ap-
propriate.
[45 FR 24363, Apr. 9, 1980, as amended at 52 FR 30673,
Aug. 17, 1987; 53 FR 12263, Apr. 13, 1988; 54 FR
12371, Mar. 24, 1989; 54 FR 21176, May 16, 1989; 56
FR 3757, Jan. 30, 1991; 57 FR 4318, Feb. 4, 1992]
§ 22.02 Use of number and gender.
As used in these rules of practice, words in the
singular also include the plural and words in the
masculine gender also include the feminine and
vice versa, as the case may require.
§ 22.03 Definitions.
(a) The following definitions apply to part 22:
Act means the particular statute authorizing the
institution of the proceeding at issue.
Administrative Law Judge means an Administra-
tive Law Judge appointed under 5 U.S.C. 3105
(see also Pub. L. 95-251, 92 Stat. 183).
Administrator means the Administrator of the
U.S. Environmental Protection Agency or his dele-
gate.
Agency means the United States Environmental
Protection Agency.
Complainant means any person authorized to
issue a complaint on behalf of the Agency to per-
sons alleged to be in violation of the Act. The
complainant shall not be a member of the Envi-
ronmental Appeals Board, the Regional Judicial
Officer, or any other person who will participate
or advise in the decision.
Complaint means a written communication, al-
leging one or more violations of specific provi-
sions of the Act, or regulations or a permit pro-
mulgated thereunder, issued by the complainant to
a person under §§22.13 and 22.14.
Consent Agreement means any written docu-
ment, signed by the parties, containing stipulations
or conclusions of fact or law and a proposed pen-
alty or proposed revocation or suspension accept-
able to both complainant and respondent.
Environmental Appeals Board means the Board
within the Agency described in § 1.25 of this title,
located at U.S. Environmental Protection Agency,
A-110, 401 M St. SW., Washington, DC 20460.
Final Order means (a) an order issued by the
Administrator after an appeal of an initial decision,
accelerated decision, decision to dismiss, or de-
fault order, disposing of a matter in controversy
between the parties, or (b) an initial decision
which becomes a final order under § 22.27(c).
Hearing means a hearing on the record open to
the public and conducted under these rules of
practice.
Hearing Clerk means the Hearing Clerk, A-l 10,
U.S. Environmental Protection Agency, 401 M St.
SW., Washington, DC 20460.
Initial Decision means the decision issued by
the Presiding Officer based upon the record of the
proceedings out of which it arises.
Party means any person that participates in a
hearing as complainant, respondent, or intervenor.
Permit means a permit issued under section 102
of the Marine Protection, Research, and Sanc-
tuaries Act.
Person includes any individual, partnership, as-
sociation, corporation, and any trustee, assignee,
receiver or legal successor thereof; any organized
group of persons whether incorporated or not; and
any officer, employee, agent, department, agency
or instrumentality of the Federal Government, of
-------
§22.04
any State or local unit of government, or of any
foreign government.
Presiding Officer means the Administrative Law
Judge designated by the Chief Administrative Law
Judge to serve as Presiding Officer, unless other-
wise specified by any supplemental rules.
Regional Administrator means the Administrator
of any Regional Office of the Agency or any offi-
cer or employee thereof to whom his authority is
duly delegated. Where the Regional Administrator
has authorized the Regional Judicial Officer to act,
the term Regional Administrator shall include the
Regional Judicial Officer. In a case where the
complainant is the Assistant Administrator for En-
forcement or his delegate, the term Regional Ad-
ministrator as used in these rules shall mean the
Administrator.
Regional Hearing Clerk means an individual
duly authorized by the Regional Administrator to
serve as hearing clerk for a given region. Cor-
respondence may be addressed to the Regional
Hearing Clerk, U.S. Environmental Protection
Agency (address of Regional Office—see appen-
dix). In a case where the complainant is the As-
sistant Administrator for Enforcement or his dele-
gate, the term Regional Hearing Clerk as used in
these rules shall mean the Hearing Clerk.
Regional Judicial Officer means a person des-
ignated by the Regional Administrator under
§22.04(b) to serve as a Regional Judicial Officer.
Respondent means any person proceeded against
in the complaint.
(b) Terms defined in the Act and not defined in
these rules of practice are used consistent with the
meanings given in the Act.
[45 FR 24363, Apr. 9, 1980, as amended at 57 FR 5323,
Feb. 13, 1992]
§ 22.04 Powers and duties of the Envi-
ronmental Appeals Board, the Re-
gional Administrator, the Regional
Judicial Officer, and the Presiding
Officer; disqualification.
(a) Environmental Appeals Board. The Admin-
istrator delegates authority under the Act to the
Environmental Appeals Board to perform the func-
tions assigned to it in these rules of practice. An
appeal or motion under this part directed to the
Administrator, rather than to the Environmental
Appeals Board, will not be considered. This dele-
gation of authority to the Environmental Appeals
Board does not preclude the Environmental Ap-
peals Board from referring any case or motion
governed by this part to the Administrator when
the Environmental Appeals Board, in its direction,
deems it appropriate to do so. When an appeal or
motion is referred to the Administrator, all parties
shall be so notified and the rules in this part refer-
ring to the Environmental Appeals Board shall be
interpreted as referring to the Administrator. If a
case or motion is referred to the Administrator by
the Environmental Appeals Board, the Adminis-
trator may consult with any EPA employee con-
cerning the matter, provided such consultation
does not violate the ex parte rules set forth in
§22.08.
(b) Regional Administrator. The Regional Ad-
ministrator shall exercise all powers and duties as
prescribed or delegated under the Act and these
rules of practice.
(1) Delegation to Regional Judicial Officer. One
or more Regional Judicial Officers may be des-
ignated by the Regional Administrator to perform,
within the region of their designation, the func-
tions described below. The Regional Administrator
may delegate his or her authority to a Regional Ju-
dicial Officer to act in a given proceeding. This
delegation will not prevent the Regional Judicial
Officer from referring any motion or case to the
Regional Administrator. The Regional Judicial Of-
ficer shall exercise all powers and duties pre-
scribed or delegated under the Act or these rules
of practice.
(2) Qualifications of Regional Judicial Officer.
A Regional Judicial Officer shall be an attorney
who is a permanent or temporary employee of the
Agency or some other Federal agency and who
may perform other duties within the Agency. A
Regional Judicial Officer shall not be employed by
the Region's Enforcement Division or by the Re-
gional Division directly associated with the type of
violation at issue in the proceeding. A Regional
Judicial Officer shall not have performed prosecu-
torial or investigative functions in connection with
any hearing in which he serves as a Regional Judi-
cial Officer or with any factually related hearing.
(c) Presiding Officer. The Presiding Officer
shall conduct a fair and impartial proceeding, as-
sure that the facts are fully elicited, adjudicate all
issues, and avoid delay. The Presiding Officer
shall have authority to:
(1) Conduct administrative hearings under these
rules of practice;
(2) Rule upon motions, requests, and offers of
proof, dispose of procedural requests, and issue all
necessary orders;
(3) Administer oaths and affirmations and take
affidavits;
(4) Examine witnesses and receive documentary
or other evidence;
(5) For good cause, upon motion or sua sponte,
order a party, or an officer or agent thereof, to
produce testimony, documents, or other nonprivi-
leged evidence, and failing the production thereof
without good cause being shown, draw adverse in-
ferences against that party;
(6) Admit or exclude evidence;
-------
§22.05
(7) Hear and decide questions of facts, law, or
discretion;
(8) Require parties to attend conferences for the
settlement or simplification of the issues, or the
expedition of the proceedings;
(9) Issue subpoenas authorized by the Act; and
(10) Do all other acts and take all measures
necessary for the maintenance of order and for the
efficient, fair and impartial adjudication of issues
arising in proceedings governed by these rules.
(d) Disqualification; withdrawal. (1) The Ad-
ministrator, the Regional Administrator, the mem-
bers of the Environmental Appeals Board, the Re-
gional Judicial Officer, or the Presiding Officer
may not perform functions provided for in these
rules of practice regarding any matter in which
they (i) have a financial interest or (ii) have any
relationship with a party or with the subject matter
which would make it inappropriate for them to act.
Any party may at any time by motion made to the
Regional Administrator request that the Regional
Judicial Officer be disqualified from the proceed-
ing. Any party may at any time by motion to the
Administrator request that the Regional Adminis-
trator, a member of the Environmental Appeals
Board, or the Presiding Officer be disqualified or
request that the Administrator disqualify himself
or herself from the proceeding. The Administrator,
the Regional Administrator, a member of the Envi-
ronmental Appeals Board, the Regional Judicial
Officer, or the Presiding Officer may at any time
withdraw from any proceeding in which they
deem themselves disqualified or unable to act for
any reason.
(2) If the Administrator, the Regional Adminis-
trator, the Regional Judicial Officer, or the Presid-
ing Officer is disqualified or withdraws from the
proceeding, a qualified individual who has none of
the infirmities listed in paragraph (d)(l) of this
section shall be assigned to replace him. Assign-
ment of a replacement for Regional Administrator
or for the Regional Judicial Officer shall be made
by the Administrator or the Regional Adminis-
trator, respectively. The Administrator, should he
or she withdraw or disqualify himself or herself,
shall assign the Regional Administrator from the
Region where the case originated to replace him
or her. If that Regional Administrator would be
disqualified, the Administrator shall assign a Re-
gional Administrator from another region to re-
place the Administrator. The Regional Adminis-
trator shall assign a new Presiding Officer if the
original Presiding Officer was not an Administra-
tive Law Judge. The Chief Administrative Law
Judge shall assign a new Presiding Officer from
among available Administrative Law Judges if the
original Presiding Officer was an Administrative
Law Judge.
(3) The Chief Administrative Law Judge, at any
stage in the proceeding, may reassign the case to
an Administrative Law Judge other than the one
originally assigned in the event of the unavail-
ability of the Administrative Law Judge or where
reassignment will result in efficiency in the sched-
uling of hearings and would not prejudice the par-
ties.
[45 FR 24363, Apr. 9, 1980, as amended at 57 FR 5324,
Feb. 13, 1992; 57 FR 60129, Dec. 18, 1992]
§22.05 Filing, service, and form of
pleadings and documents.
(a) Filing of pleadings and documents. (1) Ex-
cept as otherwise provided, the original and one
copy of the complaint, and the original of the an-
swer and of all other documents served in the pro-
ceeding shall be filed with the Regional Hearing
Clerk.
(2) A certificate of service shall accompany
each document filed or served. Except as other-
wise provided, a party filing documents with the
Regional Hearing Clerk, after the filing of the an-
swer, shall serve copies thereof upon all other par-
ties and the Presiding Officer. The Presiding Offi-
cer shall maintain a duplicate file during the
course of the proceeding.
(3) When the Presiding Officer corresponds di-
rectly with the parties, the original of the cor-
respondence shall be sent to the Regional Hearing
Clerk, a copy shall be maintained by the Presiding
Officer in the duplicate file, and a copy shall be
sent to all parties. Parties who correspond directly
with the Presiding Officer shall in addition to
serving all other parties send a copy of all such
correspondence to the Regional Hearing Clerk. A
certificate of service shall accompany each docu-
ment served under this subsection.
(b) Service of pleadings and documents—(1)
Service of complaint, (i) Service of a copy of the
signed original of the complaint, together with a
copy of these rules of practice, may be made per-
sonally or by certified mail, return receipt re-
quested, on the respondent (or his representative).
(ii) Service upon a domestic or foreign corpora-
tion or upon a partnership or other unincorporated
association which is subject to suit under a com-
mon name shall be made by personal service or
certified mail, as prescribed by paragraph (b)(l)(i)
of this section, directed to an officer, partner, a
managing or general agent, or to any other person
authorized by appointment or by Federal or State
law to receive service of process.
(iii) Service upon an officer or agency of the
United States shall be made by delivering a copy
of the complaint to the officer or agency, or in any
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§22.07
manner prescribed for service by applicable regu-
lations. If the agency is a corporation, the com-
plaint shall be served as prescribed in paragraph
(b)(l)(ii) of this section.
(iv) Service upon a State or local unit of gov-
ernment, or a State or local officer, agency, de-
partment, corporation or other instrumentality shall
be made by serving a copy of the complaint in the
manner prescribed by the law of the State for the
service of process on any such persons, or:
(A) If upon a State or local unit of government,
or a State or local department, agency, corporation
or other instrumentality, by delivering a copy of
the complaint to the chief executive officer there-
of;
(B) If upon a State or local officer by delivering
a copy to such officer.
(v) Proof of service of the complaint shall be
made by affidavit of the person making personal
service, or by properly executed return receipt.
Such proof of service shall be filed with the com-
plaint immediately upon completion of service.
(2) Service of documents other than complaint,
rulings, orders, and decisions. All documents
other than the complaint, rulings, orders, and deci-
sions, may be served personally or by certified or
first class mail.
(c) Form of pleadings and documents. (1) Ex-
cept as provided herein, or by order of the Presid-
ing Officer or of the Environmental Appeals
Board, there are no specific requirements as to the
form of documents.
(2) The first page of every pleading, letter, or
other document shall contain a caption identifying
the respondent and the docket number which is
exhibited on the complaint.
(3) The original of any pleading, letter or other
document (other than exhibits) shall be signed by
the party filing or by his counsel or other rep-
resentative. The signature constitutes a representa-
tion by the signer that he has read the pleading,
letter or other document, that to the best of his
knowledge, information and belief, the statements
made therein are true, and that it is not interposed
for delay.
(4) The initial document filed by any person
shall contain his name, address and telephone
number. Any changes in this information shall be
communicated promptly to the Regional Hearing
Clerk, Presiding Officer, and all parties to the pro-
ceeding. A party who fails to furnish such infor-
mation and any changes thereto shall be deemed
to have waived his right to notice and service
under these rules.
(5) The Environmental Appeals Board, the Re-
gional Administrator, the Presiding Officer, or the
Regional Hearing Clerk may refuse to file any
document which does not comply with this para-
graph. Written notice of such refusal, stating the
reasons therefor, shall be promptly given to the
person submitting the document. Such person may
amend and resubmit any document refused for fil-
ing upon motion granted by the Environmental
Appeals Board, the Regional Administrator, or the
Presiding Officer, as appropriate.
[45 FR 24363, Apr. 9, 1980, as amended at 57 FR 5324,
Feb. 13, 1992]
§ 22.06 Filing and service of rulings,
orders, and decisions.
All rulings, orders, decisions, and other docu-
ments issued by the Regional Administrator, Re-
gional Judicial Officer, or Presiding Officer, as ap-
propriate, shall be filed with the Regional Hearing
Clerk. All such documents issued by the Environ-
mental Appeals Board shall be filed with the Clerk
of the Environmental Appeals Board. Copies of
such rulings, orders, decisions, or other documents
shall be served personally, or by certified mail, re-
turn receipt requested, upon all parties by the En-
vironmental Appeals Board, the Regional Admin-
istrator, the Regional Judicial Officer, or the Pre-
siding Officer, as appropriate.
[45 FR 24363, Apr. 9, 1980, as amended at 57 FR 5324,
Feb. 13, 1992]
§22.07 Computation and extension of
time.
(a) Computation. In computing any period of
time prescribed or allowed in these rules of prac-
tice, except as otherwise provided, the day of the
event from which the designated period begins to
run shall not be included. Saturdays, Sundays, and
Federal legal holidays shall be included. When a
stated time expires on a Saturday, Sunday or legal
holiday, the stated time period shall be extended
to include the next business day.
(b) Extensions of time. The Environmental Ap-
peals Board, the Regional Administrator, or the
Presiding Officer, as appropriate, may grant an ex-
tension of time for the filing of any pleading, doc-
ument, or motion (1) upon timely motion of a
party to the proceeding, for good cause shown,
and after consideration of prejudice to other par-
ties, or (2) upon its or his own motion. Such a
motion by a party may only be made after notice
to all other parties, unless the movant can show
good cause why serving notice is impracticable.
The motion shall be filed in advance of the date
on which the pleading, document or motion is due
to be filed, unless the failure of a party to make
timely motion for extension of time was the result
of excusable neglect.
(c) Service by mail. Service of the complaint is
complete when the return receipt is signed. Service
of all other pleadings and documents is complete
upon mailing. Where a pleading or document is
served by mail, five (5) days shall be added to the
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§22.08
time allowed by these rules for the filing of a re-
sponsive pleading or document.
[45 FR 24363, Apr. 9, 1980, as amended at 57 FR 5324,
Feb. 13, 1992]
§ 22.08 Ex parte discussion of proceed-
ing.
At no time after the issuance of the complaint
shall the Administrator, the members of the Envi-
ronmental Appeals Board, the Regional Adminis-
trator, the Regional Judicial Officer, the Presiding
Officer, or any other person who is likely to ad-
vise these officials in the decision on the case, dis-
cuss ex parte the merits of the proceeding with
any interested person outside the Agency, with any
Agency staff member who performs a prosecu-
torial or investigative function in such proceeding
or a factually related proceeding, or with any rep-
resentative of such person. Any ex parte memoran-
dum or other communication addressed to the Ad-
ministrator, the Regional Administrator, the Envi-
ronmental Appeals Board, the Regional Judicial
Officer, or the Presiding Officer during the pend-
ency of the proceeding and relating to the merits
thereof, by or on behalf of any party shall be re-
garded as argument made in the proceeding and
shall be served upon all other parties. The other
parties shall be given an opportunity to reply to
such memorandum or communication.
[45 FR 24363, Apr. 9, 1980, as amended at 57 FR 5325,
Feb. 13, 1992]
§ 22.09 Examination of documents
filed.
(a) Subject to the provisions of law restricting
the public disclosure of confidential information,
any person may, during Agency business hours,
inspect and copy any document filed in any pro-
ceeding. Such documents shall be made available
by the Regional Hearing Clerk, the Hearing Clerk,
or the Environmental Appeals Board, as appro-
priate.
(b) The cost of duplicating documents filed in
any proceeding shall be borne by the person seek-
ing copies of such documents. The Agency may
waive this cost in appropriate cases.
[45 FR 24363, Apr. 9, 1980, as amended at 57 FR 5325,
Feb. 13, 1992]
Subpart B—Parties and
Appearances
§22.10 Appearances.
Any party may appear in person or by counsel
or other representative. A partner may appear on
behalf of a partnership and an officer may appear
on behalf of a corporation. Persons who appear as
counsel or other representative must conform to
the standards of conduct and ethics required of
practitioners before the courts of the United States.
§22.11 Intervention.
(a) Motion. A motion for leave to intervene in
any proceeding conducted under these rules of
practice must set forth the grounds for the pro-
posed intervention, the position and interest of the
movant and the likely impact that intervention will
have on the expeditious progress of the proceed-
ing. Any person already a party to the proceeding
may file an answer to a motion to intervene, mak-
ing specific reference to the factors set forth in the
foregoing sentence and paragraph (c) of this sec-
tion, within ten (10) days after service of the mo-
tion for leave to intervene.
(b) When filed. A motion for leave to intervene
in a proceeding must ordinarily be filed before the
first prehearing conference or, in the absence of a
prehearing conference, before the initiation of cor-
respondence under §22.19(e), or if there is no
such correspondence, prior to the setting of a time
and place for a hearing. Any motion filed after
that time must include, in addition to the informa-
tion set forth in paragraph (a) of this section, a
statement of good cause for the failure to file in
a timely manner. The intervenor shall be bound by
any agreements, arrangements and other matters
previously made in the proceeding.
(c) Disposition. Leave to intervene may be
granted only if the movant demonstrates that (1)
his presence in the proceeding would not unduly
prolong or otherwise prejudice the adjudication of
the rights of the original parties; (2) the movant
will be adversely affected by a final order; and (3)
the interests of the movant are not being ade-
quately represented by the original parties. The in-
tervenor shall become a full party to the proceed-
ing upon the granting of leave to intervene.
(d) Amicus curiae. The motion shall identify the
interest of the applicant and shall state the reasons
why the proposed amicus brief is desirable. If the
motion is granted, the Presiding Officer or Admin-
istrator shall issue an order setting the time for fil-
ing such brief. If the motion is granted, the Presid-
ing Officer or the Environmental Appeals Board
shall issue an order setting the time for filing such
brief.
[45 FR 24363, Apr. 9, 1980, as amended at 57 FR 5325,
Feb. 13, 1992]
§22.12 Consolidation and severance.
(a) Consolidation. The Presiding Officer may,
by motion or sua sponte, consolidate any or all
matters at issue in two or more proceedings dock-
eted under these rules of practice where (1) there
exists common parties or common questions of
fact or law, (2) consolidation would expedite and
-------
§22.15
simplify consideration of the issues, and (3) con-
solidation would not adversely affect the rights of
parties engaged in otherwise separate proceedings.
(b) Severance. The Presiding Officer may, by
motion or sua sponte, for good cause shown order
any proceedings severed with respect to any or all
parties or issues.
Sub pa it C—Prehearing
Procedures
§ 22.13 Issuance of complaint.
If the complainant has reason to believe that a
person has violated any provision of the Act, or
regulations promulgated or a permit issued under
the Act, he may institute a proceeding for the as-
sessment of a civil penalty by issuing a complaint
under the Act and these rules of practice. If the
complainant has reason to believe that
(a) A permittee violated any term or condition
of the permit, or
(b) A permittee misrepresented or inaccurately
described any material fact in the permit applica-
tion or failed to disclose all relevant facts in the
permit application, or
(c) Other good cause exists for such action, he
may institute a proceeding for the revocation or
suspension of a permit by issuing a complaint
under the Act and these rules of practice. A com-
plaint may be for the suspension or revocation of
a permit in addition to the assessment of a civil
penalty.
§22.14 Content and amendment of the
complaint.
(a) Complaint for the assessment of a civil pen-
alty. Each complaint for the assessment of a civil
penalty shall include:
(1) A statement reciting the section(s) of the
Act authorizing the issuance of the complaint;
(2) Specific reference to each provision of the
Act and implementing regulations which respond-
ent is alleged to have violated;
(3) A concise statement of the factual basis for
alleging the violation;
(4) The amount of the civil penalty which is
proposed to be assessed;
(5) A statement explaining the reasoning behind
the proposed penalty;
(6) Notice of respondent's right to request a
hearing on any material fact contained in the com-
plaint, or on the appropriateness of the amount of
the proposed penalty.
A copy of these rules of practice shall accompany
each complaint served.
(b) Complaint for the revocation or suspension
of a permit. Each complaint for the revocation or
suspension of a permit shall include:
(1) A statement reciting the section(s) of the
Act, regulations, and/or permit authorizing the is-
suance of the complaint;
(2) Specific reference to each term or condition
of the permit which the respondent is alleged to
have violated, to each alleged inaccuracy or mis-
representation in respondent's permit application,
to each fact which the respondent allegedly failed
to disclose in his permit application, or to other
reasons which form the basis for the complaint;
(3) A concise statement of the factual basis for
such allegations;
(4) A request for an order to either revoke or
suspend the permit and a statement of the terms
and conditions of any proposed partial suspension
or revocation;
(5) A statement indicating the basis for rec-
ommending the revocation, rather than the suspen-
sion, of the permit, or vice versa, as the case may
be;
(6) Notice of the respondent's right to request
a hearing on any material fact contained in the
complaint, or on the appropriateness of the pro-
posed revocation or suspension.
A copy of these rules of practice shall accompany
each complaint served.
(c) Derivation of proposed civil penalty. The
dollar amount of the proposed civil penalty shall
be determined in accordance with any criteria set
forth in the Act relating to the proper amount of
a civil penalty and with any civil penalty guide-
lines issued under the Act.
(d) Amendment of the complaint. The complain-
ant may amend the complaint once as a matter of
right at any time before the answer is filed. Other-
wise the complainant may amend the complaint
only upon motion granted by the Presiding Officer
or Regional Administrator, as appropriate. Re-
spondent shall have twenty (20) additional days
from the date of service of the amended complaint
to file his answer.
(e) Withdrawal of the complaint. The complain-
ant may withdraw the complaint, or any part there-
of, without prejudice one time before the answer
has been filed. After one withdrawal before the fil-
ing of an answer, or after the filing of an answer,
the complainant may withdraw the complaint, or
any part thereof, without prejudice, only upon mo-
tion granted by the Presiding Officer or Regional
Administrator, as appropriate.
§22.15 Answer to the complaint.
(a) General. Where respondent: (1) Contests any
material fact upon which the complaint is based;
(2) contends that the amount of the penalty pro-
posed in the complaint or the proposed revocation
or suspension, as the case may be, is inappropri-
ate; or (3) contends that he is entitled to judgment
as a matter of law, he shall file a written answer
-------
§22.16
to the complaint with the Regional Hearing Clerk.
Any such answer to the complaint must be filed
with the Regional Hearing Clerk within twenty
(20) days after service of the complaint.
(b) Contents of the answer. The answer shall
clearly and directly admit, deny or explain each of
the factual allegations contained in the complaint
with regard to which respondent has any knowl-
edge. Where respondent has no knowledge of a
particular factual allegation and so states, the alle-
gation is deemed denied. The answer shall also
state (1) the circumstances or arguments which are
alleged to constitute the grounds of defense, (2)
the facts which respondent intends to place at
issue, and (3) whether a hearing is requested.
(c) Request for hearing. A hearing upon the is-
sues raised by the complaint and answer shall be
held upon request of respondent in the answer. In
addition, a hearing may be held at the discretion
of the Presiding Officer, sua sponte, if issues ap-
propriate for adjudication are raised in the answer.
(d) Failure to admit, deny, or explain. Failure of
respondent to admit, deny, or explain any material
factual allegation contained in the complaint con-
stitutes an admission of the allegation.
(e) Amendment of the answer. The respondent
may amend the answer to the complaint upon mo-
tion granted by the Presiding Officer.
§22.16 Motions.
(a) General. All motions, except those made
orally on the record during a hearing, shall (1) be
in writing; (2) state the grounds therefor with par-
ticularity; (3) set forth the relief or order sought;
and (4) be accompanied by any affidavit, certifi-
cate, other evidence, or legal memorandum relied
upon. Such motions shall be served as provided by
§22.05(b)(2).
(b) Response to motions. A party's response to
any written motion must be filed within ten (10)
days after service of such motion, unless addi-
tional time is allowed for such response. The re-
sponse shall be accompanied by any affidavit, cer-
tificate, other evidence, or legal memorandum re-
lied upon. If no response is filed within the des-
ignated period, the parties may be deemed to have
waived any objection to the granting of the mo-
tion. The Presiding Officer, the Regional Adminis-
trator, or the Environmental Appeals Board, as ap-
propriate, may set a shorter time for response, or
make such orders concerning the disposition of
motions as they deem appropriate.
(c) Decision. Except as provided in
§22.04(d)(l) and §22.28(a), the Regional Admin-
istrator shall rule on all motions filed or made be-
fore an answer to the complaint is filed. The Envi-
ronmental Appeals Board shall rule on all motions
filed or made after service of the initial decision
upon the parties. The Administrator shall rule on
all motions filed or made after service of the ini-
tial decision upon the parties. The Presiding Offi-
cer shall rule on all other motions. Oral argument
on motions will be permitted where the Presiding
Officer, the Regional Administrator, or the Envi-
ronmental Appeals Board considers it necessary or
desirable.
[45 FR 24363, Apr. 9, 1980, as amended at 57 FR 5325,
Feb. 13, 1992; 57 FR 60129, Dec. 18, 1992]
§22.17 Default order.
(a) Default. A party may be found to be in de-
fault (1) after motion, upon failure to file a timely
answer to the complaint; (2) after motion or sua
sponte, upon failure to comply with a prehearing
or hearing order of the Presiding Officer; or (3)
after motion or sua sponte, upon failure to appear
at a conference or hearing without good cause
being shown. No finding of default on the basis of
a failure to appear at a hearing shall be made
against the respondent unless the complainant pre-
sents sufficient evidence to the Presiding Officer
to establish a prima facie case against the respond-
ent. Any motion for a default order shall include
a proposed default order and shall be served upon
all parties. The alleged defaulting party shall have
twenty (20) days from service to reply to the mo-
tion. Default by respondent constitutes, for pur-
poses of the pending action only, an admission of
all facts alleged in the complaint and a waiver of
respondent's right to a hearing on such factual al-
legations. If the complaint is for the assessment of
a civil penalty, the penalty proposed in the com-
plaint shall become due and payable by respondent
without further proceedings sixty (60) days after a
final order issued upon default. If the complaint is
for the revocation or suspension of a permit, the
conditions of revocation or suspension proposed in
the complaint shall become effective without fur-
ther proceedings on the date designated by the Ad-
ministrator in his final order issued upon default.
Default by the complainant shall result in the dis-
missal of the complaint with prejudice.
(b) Procedures upon default. When Regional
Administrator or Presiding Officer finds a default
has occurred, he shall issue a default order against
the defaulting party. This order shall constitute the
initial decision, and shall be filed with the Re-
gional Hearing Clerk.
(c) Contents of a default order. A default order
shall include findings of fact showing the grounds
for the order, conclusions regarding all material is-
sues of law or discretion, and the penalty which
is recommended to be assessed or the terms and
conditions of permit revocation or suspension, as
appropriate.
(d) For good cause shown the Regional Admin-
istrator or the Presiding Officer, as appropriate,
may set aside a default order.
-------
§22.19
§22.18 Informal settlement; consent
agreement and order.
(a) Settlement policy. The Agency encourages
settlement of a proceeding at any time if the set-
tlement is consistent with the provisions and ob-
jectives of the Act and applicable regulations. The
respondent may confer with complainant concern-
ing settlement whether or not the respondent re-
quests a hearing. Settlement conferences shall not
affect the respondent's obligation to file a timely
answer under §22.16.
(b) Consent agreement. The parties shall for-
ward a written consent agreement and a proposed
consent order to the Regional Administrator when-
ever settlement or compromise is proposed. The
consent agreement shall state that, for the purpose
of this proceeding, respondent (1) admits the juris-
dictional allegations of the complaint; (2) admits
the facts stipulated in the consent agreement or
neither admits nor denies specific factual allega-
tions contained in the complaint; and (3) consents
to the assessment of a stated civil penalty or to the
stated permit revocation or suspension, as the case
may be. The consent agreement shall include any
and all terms of the agreement, and shall be signed
by all parties or their counsel or representatives.
(c) Consent order. No settlement or consent
agreement shall dispose of any proceeding under
these rules of practice without a consent order
from the Regional Administrator. In preparing
such an order, the Regional Administrator may re-
quire that the parties to the settlement appear be-
fore him to answer inquiries relating to the con-
sent agreement or order.
§22.19 Prehearing conference.
(a) Purpose of prehearing conference. Unless a
conference appears unnecessary, the Presiding Of-
ficer, at any time before the hearing begins, shall
direct the parties and their counsel or other rep-
resentatives to appear at a conference before him
to consider:
(1) The settlement of the case;
(2) The simplification of issues and stipulation
of facts not in dispute;
(3) The necessity or desirability of amendments
to pleadings;
(4) The exchange of exhibits, documents, pre-
pared testimony, and admissions or stipulations of
fact which will avoid unnecessary proof;
(5) The limitation of the number of expert or
other witnesses;
(6) Setting a time and place for the hearing; and
(7) Any other matters which may expedite the
disposition of the proceeding.
(b) Exchange of witness lists and documents.
Unless otherwise ordered by the Presiding Officer,
each party at the prehearing conference shall make
available to all other parties (1) The names of the
expert and other witnesses he intends to call, to-
gether with a brief narrative summary of their ex-
pected testimony, and (2) copies of all documents
and exhibits which each party intends to introduce
into evidence. Documents and exhibits shall be
marked for identification as ordered by the Presid-
ing Officer. Documents that have not been ex-
changed and witnesses whose names have not
been exchanged shall not be introduced into evi-
dence or allowed to testify without permission of
the Presiding Officer. The Presiding Officer shall
allow the parties reasonable opportunity to review
new evidence.
(c) Record of the prehearing conference. No
transcript of a prehearing conference relating to
settlement shall be made. With respect to other
prehearing conferences, no transcript of any pre-
hearing conferences shall be made unless ordered
by the Presiding Officer upon motion of a party
or sua sponte. The Presiding Officer shall prepare
and file for the record a written summary of the
action taken at the conference. The summary shall
incorporate any written stipulations or agreements
of the parties and all rulings and appropriate or-
ders containing directions to the parties.
(d) Location of prehearing conference. The pre-
hearing conference shall be held in the county
where the respondent resides or conducts the busi-
ness which the hearing concerns, in the city in
which the relevant Environmental Protection
Agency Regional Office is located, or in Washing-
ton, DC, unless (1) the Presiding Officer deter-
mines that there is good cause to hold it at another
location in a region or by telephone, or (2) the
Supplemental rules of practice provide otherwise.
(e) Unavailability of a prehearing conference. If
a prehearing conference is unnecessary or imprac-
ticable, the Presiding Officer, on motion or sua
sponte, may direct the parties to correspond with
him to accomplish any of the objectives set forth
in this section.
(f) Other discovery. (1) Except as provided by
paragraph (b) of this section, further discovery,
under this section, shall be permitted only upon
determination by the Presiding Officer:
(i) That such discovery will not in any way un-
reasonably delay the proceeding;
(ii) That the information to be obtained is not
otherwise obtainable; and
(iii) That such information has significant pro-
bative value.
(2) The Presiding Officer shall order depositions
upon oral questions only upon a showing of good
cause and upon a finding that:
(i) The information sought cannot be obtained
by alternative methods; or
(ii) There is a substantial reason to believe that
relevant and probative evidence may otherwise not
-------
§22.20
be preserved for presentation by a witness at the
hearing.
(3) Any party to the proceeding desiring an
order of discovery shall make a motion therefor.
Such a motion shall set forth;
(i) The circumstances warranting the taking of
the discovery;
(ii) The nature of the information expected to be
discovered; and
(iii) The proposed time and place where it will
be taken. If the Presiding Officer determines that
the motion should be granted, he shall issue an
order for the taking of such discovery together
with the conditions and terms thereof.
(4) When the information sought to be obtained
is within the control of one of the parties, failure
to comply with an order issued pursuant to this
paragraph may lead to (i) the inference that the in-
formation to be discovered would be adverse to
the party from whom the information was sought,
or (ii) the issuance of a default order under
§22.17(a).
§22.20 Accelerated decision; decision
to dismiss.
(a) General. The Presiding Officer, upon motion
of any party or sua sponte, may at any time render
an accelerated decision in favor of the complainant
or the respondent as to all or any part of the pro-
ceeding, without further hearing or upon such lim-
ited additional evidence, such as affidavits, as he
may require, if no genuine issue of material fact
exists and a party is entitled to judgment as a mat-
ter of law, as to all or any part of the proceeding.
In addition, the Presiding Officer, upon motion of
the respondent, may at any time dismiss an action
without further hearing or upon such limited addi-
tional evidence as he requires, on the basis of fail-
ure to establish a prima facie case or other
grounds which show no right to relief on the part
of the complainant.
(b) Effect. (1) If an accelerated decision or a de-
cision to dismiss is issued as to all the issues and
claims in the proceeding, the decision constitutes
an initial decision of the Presiding Officer, and
shall be filed with the Regional Hearing Clerk.
(2) If an accelerated decision or a decision to
dismiss is rendered on less than all issues or
claims in the proceeding, the Presiding Officer
shall determine what material facts exist without
substantial controversy and what material facts re-
main controverted in good faith. He shall there-
upon issue an interlocutory order specifying the
facts which appear substantially uncontroverted,
and the issues and claims upon which the hearing
will proceed.
Sub pa it D—Hearing Procedure
§ 22.21 Scheduling the hearing.
(a) When an answer is filed, the Regional Hear-
ing Clerk shall forward the complaint, the answer,
and any other documents filed thus far in the pro-
ceeding to the Chief Administrative Law Judge
who shall assign himself or another Administrative
Law Judge as Presiding Officer, unless otherwise
provided in the Supplemental rules of practice.
The Presiding Officer shall then obtain the case
file from the Chief Administrative Law Judge and
notify the parties of his assignment.
(b) Notice of hearing. If the respondent requests
a hearing in his answer, or one is ordered by the
Presiding Officer under §22.15(c), the Presiding
Officer shall serve upon the parties a notice of
hearing setting forth a time and place for the hear-
ing. The Presiding Officer may issue the notice of
hearing at any appropriate time, but not later than
twenty (20) days prior to the date set for the hear-
ing.
(c) Postponement of hearing. No request for
postponement of a hearing shall be granted except
upon motion and for good cause shown.
(d) Location of the hearing. The location of the
hearing shall be determined in accordance with the
method for determining the location of a prehear-
ing conference under § 22.19(d).
§22.22 Evidence.
(a) General. The Presiding Officer shall admit
all evidence which is not irrelevant, immaterial,
unduly repetitious, or otherwise unreliable or of
little probative value, except that evidence relating
to settlement which would be excluded in the fed-
eral courts under Rule 408 of the Federal Rules of
Evidence is not admissible. In the presentation, ad-
mission, disposition, and use of evidence, the Pre-
siding Officer shall preserve the confidentiality of
trade secrets and other commercial and financial
information. The confidential or trade secret status
of any information shall not, however, preclude its
being introduced into evidence. The Presiding Of-
ficer may make such orders as may be necessary
to consider such evidence in camera, including the
preparation of a supplemental initial decision to
address questions of law, fact, or discretion which
arise out of that portion of the evidence which is
confidential or which includes trade secrets.
(b) Examination of witnesses. Witnesses shall be
examined orally, under oath or affirmation, except
as otherwise provided in these rules of practice or
by the Presiding Officer. Parties shall have the
right to cross-examine a witness who appears at
the hearing provided that such cross-examination
is not unduly repetitious.
(c) Verified statements. The Presiding Officer
may admit an insert into the record as evidence,
10
-------
§22.27
in lieu of oral testimony, statements of fact or
opinion prepared by a witness. The admissibility
of the evidence contained in the statement shall be
subject to the same rules as if the testimony were
produced under oral examination. Before any such
statement is read or admitted into evidence, the
witness shall deliver a copy of the statement to the
Presiding Officer, the reporter, and opposing coun-
sel. The witness presenting the statement shall
swear to or affirm the statement and shall be sub-
ject to appropriate oral cross-examination upon the
contents thereof.
(d) Admission of affidavits where the witness is
unavailable. The Presiding Officer may admit into
evidence affidavits of witnesses who are unavail-
able. The term "unavailable" shall have the
meaning accorded to it by Rule 804(a) of the Fed-
eral Rules of Evidence.
(e) Exhibits. Where practicable, an original and
one copy of each exhibit shall be filed with the
Presiding Officer for the record and a copy shall
be furnished to each party. A true copy of any ex-
hibit may be substituted for the original.
(f) Official notice. Official notice may be taken
of any matter judicially noticed in the Federal
courts and of other facts within the specialized
knowledge and experience of the Agency. Oppos-
ing parties shall be given adequate opportunity to
show that such facts are erroneously noticed.
§22.23 Objections and offers of proof.
(a) Objection. Any objection concerning the
conduct of the hearing may be stated orally or in
writing during the hearing. The party raising the
objection must supply a short statement of its
grounds. The ruling by the Presiding Officer on
any objection and the reasons given for it shall be
part of the record. An exception to each objection
overruled shall be automatic and is not waived by
further participation in the hearing.
(b) Offer of proof. Whenever evidence is ex-
cluded from the record, the party offering the evi-
dence may make an offer of proof, which shall be
included in the record. The offer of proof for ex-
cluded oral testimony shall consist of a brief state-
ment describing the nature of the evidence ex-
cluded. The offer of proof for excluded documents
or exhibits shall consist of the insertion in the
record of the documents or exhibits excluded.
Where the Environmental Appeals Board decides
that the ruling of the Presiding Officer in exclud-
ing the evidence was both erroneous and preju-
dicial, the hearing may be reopened to permit the
taking of such evidence.
[45 FR 24363, Apr. 9, 1980, as amended at 57 FR 5325,
Feb. 13, 1992]
§22.24 Burden of presentation; burden
of persuasion.
The complainant has the burden of going for-
ward with and of proving that the violation oc-
curred as set forth in the complaint and that the
proposed civil penalty, revocation, or suspension,
as the case may be, is appropriate. Following the
establishment of a prima facie case, respondent
shall have the burden of presenting and of going
forward with any defense to the allegations set
forth in the complaint. Each matter of controversy
shall be determined by the Presiding Officer upon
a preponderance of the evidence.
§ 22.25 Filing the transcript.
The hearing shall be transcribed verbatim.
Promptly following the taking of the last evidence,
the reporter shall transmit to the Regional Hearing
Clerk the original and as many copies of the tran-
script of testimony as are called for in the report-
er's contract with the Agency, and also shall trans-
mit to the Presiding Officer a copy of the tran-
script. A certificate of service shall accompany
each copy of the transcript. The Regional Hearing
Clerk shall notify all parties of the availability of
the transcript and shall furnish the parties with a
copy of the transcript upon payment of the cost of
reproduction, unless a party can show that the cost
is unduly burdensome. Any person not a party to
the proceeding may receive a copy of the tran-
script upon payment of the reproduction fee, ex-
cept for those parts of the transcript order to be
kept confidential by the Presiding Officer.
§22.26 Proposed findings, conclusions,
and order.
Within twenty (20) days after the parties are no-
tified of the availability of the transcript, or within
such longer time as may be fixed by the Presiding
Officer, any party may submit for the consider-
ation of the Presiding Officer, proposed findings
of fact, conclusions of law, and a proposed order,
together with briefs in support thereof. The Presid-
ing Officer shall set a time by which reply briefs
must be submitted. All submissions shall be in
writing, shall be served upon all parties, and shall
contain adequate references to the record and au-
thorities relied on.
Sub pa it E—Initial Decision and
Motion To Reopen a Hearing
§22.27 Initial decision.
(a) Filing and contents. The Presiding Officer
shall issue and file with the Regional Hearing
Clerk his initial decision as soon as practicable
after the period for filing reply briefs under
§22.26 has expired. The Presiding Officer shall
11
-------
§22.28
retain a copy of the complaint in the duplicate file.
The initial decision shall contain his findings of
fact, conclusions regarding all material issues of
law or discretion, as well as reasons therefor, a
recommended civil penalty assessment, if appro-
priate, and a proposed final order. Upon receipt of
an initial decision, the Regional Hearing Clerk
shall forward a copy to all parties, and shall send
the original, along with the record of the proceed-
ing, to the Hearing Clerk. The Hearing Clerk shall
forward a copy of the initial decision to the Envi-
ronmental Appeals Board.
(b) Amount of civil penalty. If the Presiding Of-
ficer determines that a violation has occurred, the
Presiding Officer shall determine the dollar
amount of the recommended civil penalty to be as-
sessed in the initial decision in accordance with
any criteria set forth in the Act relating to the
proper amount of a civil penalty, and must con-
sider any civil penalty guidelines issued under the
Act. If the Presiding Officer decides to assess a
penalty different in amount from the penalty rec-
ommended to be assessed in the complaint, the
Presiding Officer shall set forth in the initial deci-
sion the specific reasons for the increase or de-
crease. The Presiding Officer shall not raise a pen-
alty from that recommended to be assessed in the
complaint if the respondent has defaulted.
(c) Effect of initial decision. The initial decision
of the Presiding Officer shall become the final
order of the Environmental Appeals Board within
forty-five (45) days after its service upon the par-
ties and without further proceedings unless (1) an
appeal to the Environmental Appeals Board is
taken from it by a party to the proceedings, or (2)
the Environmental Appeals Board elects, sua
sponte, to review the initial decision.
[45 FR 24363, Apr. 9, 1980, as amended at 57 FR 5325,
Feb. 13, 1992]
§22.28 Motion to reopen a hearing.
(a) Filing and content. A motion to reopen a
hearing to take further evidence must be made no
later than twenty (20) days after service of the ini-
tial decision on the parties and shall (1) state the
specific grounds upon which relief is sought, (2)
state briefly the nature and purpose of the evi-
dence to be adduced, (3) show that such evidence
is not cumulative, and (4) show good cause why
such evidence was not adduced at the hearing. The
motion shall be made to the Presiding Officer and
filed with the Regional Hearing Clerk.
(b) Disposition of motion to reopen a hearing.
Within ten (10) days following the service of a
motion to reopen a hearing, any other party to the
proceeding may file with the Regional Hearing
Clerk and serve on all other parties an answer
thereto. The Presiding Officer shall announce his
intent to grant or deny such motion as soon as
practicable thereafter. The conduct of any proceed-
ing which may be required as a result of the grant-
ing of any motion allowed in this section shall be
governed by the provisions of the applicable sec-
tions of these rules. The filing of a motion to re-
open a hearing shall automatically stay the running
of all time periods specified under these Rules
until such time as the motion is denied or the re-
opened hearing is concluded.
Sub pa rt F—Appeals and
Administrative Review
§22.29 Appeal from or review of inter-
locutory orders or rulings.
(a) Request for interlocutory appeal. Except as
provided in this section, appeals to the Environ-
mental Appeals Board shall obtain as a matter of
right only from a default order, an accelerated de-
cision or decision to dismiss issued under
§22.20(b)(l), or an initial decision rendered after
an evidentiary hearing. Appeals from other orders
or rulings shall lie only if the Presiding Officer or
Regional Administrator, as appropriate, upon mo-
tion of a party, certifies such orders or rulings to
the Environmental Appeals Board on appeal. Re-
quests for such certification shall be filed in writ-
ing within six (6) days of notice of the ruling or
service of the order, and shall state briefly the
grounds to be relied upon on appeal.
(Jo) Availability of interlocutory appeal. The Pre-
siding Officer may certify any ruling for appeal to
the Environmental Appeals Board when (1) the
order or ruling involves an important question of
law or policy concerning which there is substantial
grounds for difference of opinion, and (2) either
(i) an immediate appeal from the order or ruling
will materially advance the ultimate termination of
the proceeding, or (ii) review after the final order
is issued will be inadequate or ineffective.
(c) Decision. If the Environmental Appeals
Board determines that certification was improvi-
dently granted, or if the Environmental Appeals
Board takes no action within thirty (30) days of
the certification, the appeal is dismissed. When the
Presiding Officer declines to certify an order or
ruling to the Environmental Appeals Board on in-
terlocutory appeal, it may be reviewed by the En-
vironmental Appeals Board only upon appeal from
the initial decision, except when the Environ-
mental Appeals Board determines, upon motion of
a party and in exceptional circumstances, that to
delay review would be contrary to the public inter-
est. Such motion shall be made within six (6) days
of service of an order of the Presiding Officer re-
fusing to certify a ruling for interlocutory appeal
to the Environmental Appeals Board. Ordinarily,
the interlocutory appeal will be decided on the
basis of the submissions made by the Presiding
12
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§22.32
Officer. The Environmental Appeals Board may,
however, allow further briefs and oral argument.
(d) Stay of proceedings. The Presiding Officer
may stay the proceedings pending a decision by
the Environmental Appeals Board upon an order
or ruling certified by the Presiding Officer for an
interlocutory appeal. Proceedings will not be
stayed except in extraordinary circumstances.
Where the Presiding Officer grants a stay of more
than thirty (30) days, such stay must be separately
approved by the Environmental Appeals Board.
[45 FR 24363, Apr. 9, 1980, as amended at 57 FR 5325,
Feb. 13, 1992]
§ 22.30 Appeal from or review of initial
decision.
(a) Notice of appeal. (1) Any party may appeal
an adverse ruling or order of the Presiding Officer
by filing a notice of appeal and an accompanying
appellate brief with the Environmental Appeals
Board and upon all other parties and amicus curiae
within twenty (20) days after the initial decision is
served upon the parties. The notice of appeal shall
set forth alternative findings of fact, alternative
conclusions regarding issues of law or discretion,
and a proposed order together with relevant ref-
erences to the record and the initial decision. The
appellant's brief shall contain a statement of the
issues presented for review, a statement of the na-
ture of the case and the facts relevant to the issues
presented for review, argument on the issues pre-
sented, and a short conclusion stating the precise
relief sought, together with appropriate references
to the record.
(2) Within fifteen (15) days of the service of
notices of appeal and briefs under paragraph (a)(l)
of this section, any other party or amicus curiae
may file and serve with the Environmental Ap-
peals Board a reply brief responding to argument
raised by the appellant, together with references to
the relevant portions of the record, initial decision,
or opposing brief. Reply briefs shall be limited to
the scope of the appeal brief. Further briefs shall
be filed only with the permission of the Environ-
mental Appeals Board.
(b) Sua sponte review by the Environmental Ap-
peals Board. Whenever the Environmental Ap-
peals Board determines sua sponte to review an
initial decision, the Environmental Appeals Board
shall serve notice of such intention on the parties
within forty-five (45) days after the initial decision
is served upon the parties. The notice shall include
a statement of issues to be briefed by the parties
and a time schedule for the service and filing of
briefs.
(c) Scope of appeal or review. If the Environ-
mental Appeals Board determines that issues
raised, but not appealed by the parties, should be
argued, it shall give counsel for the parties reason-
able written notice of such determination to permit
preparation of adequate argument. Nothing herein
shall prohibit the Environmental Appeals Board
from remanding the case to the Presiding Officer
for further proceedings.
(d) Argument before the Environmental Appeals
Board. The Environmental Appeals Board may,
upon request of a party or sua sponte, assign a
time and place for oral argument after giving con-
sideration to the convenience of the parties.
[45 FR 24363, Apr. 9, 1980, as amended at 57 FR 5325,
Feb. 13, 1992]
Sub pa it G—Final Order on Appeal
§22.31 Final order on appeal.
(a) Contents of the final order. When an appeal
has been taken or the Environmental Appeals
Board issues a notice of intent to conduct a review
sua sponte, the Environmental Appeals Board shall
issue a final order as soon as practicable after the
filing of all appellate briefs or oral argument,
whichever is later. The Environmental Appeals
Board shall adopt, modify, or set aside the find-
ings and conclusions contained in the decision or
order being reviewed and shall set forth in the
final order the reasons for its actions. The Envi-
ronmental Appeals Board may, in its discretion,
increase or decrease the assessed penalty from the
amount recommended to be assessed in the deci-
sion or order being reviewed, except that if the
order being reviewed is a default order, the Envi-
ronmental Appeals Board may not increase the
amount of the penalty.
(b) Payment of a civil penalty. The respondent
shall pay the full amount of the civil penalty as-
sessed in the final order within sixty (60) days
after receipt of the final order unless otherwise
agreed by the parties. Payment shall be made by
forwarding to the Regional Hearing Clerk a cash-
ier's check or certified check in the amount of the
penalty assessed in the final order, payable to the
Treasurer, United States of America.
[45 FR 24363, Apr. 9, 1980, as amended at 57 FR 5326,
Feb. 13, 1992]
§22.32 Motion to reconsider a final
order.
Motions to reconsider a final order shall be filed
within ten (10) days after service of the final
order. Every such motion must set forth the mat-
ters claimed to have been erroneously decided and
the nature of the alleged errors. Motions for recon-
sideration under this provision shall be directed to,
and decided by, the Environmental Appeals Board.
Motions for reconsideration directed to the Admin-
istrator, rather than to the Environmental Appeals
Board, will not be considered, except in cases that
13
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§22.33
the Environmental Appeals Board has referred to
the Administrator pursuant to § 22.04(a) and in
which the Administrator has issued the final order.
A motion for reconsideration shall not stay the ef-
fective date of the final order unless specifically
so ordered by the Environmental Appeals Board.
[57 FR 5326, Feb. 13, 1992]
Subpart H—Supplemental Rules
§ 22.33 Supplemental rules of practice
governing the administrative as-
sessment of civil penalties under
the Toxic Substances Control Act.
(a) Scope of these Supplemental rules. These
Supplemental rules of practice shall govern, in
conjunction with the preceding consolidated rules
of practice (40 CFR part 22), all formal adjudica-
tions for the assessment of any civil penalty con-
ducted under section 16(a) of the Toxic Sub-
stances Control Act (15 U.S.C. 2615(a)). Where
inconsistencies exist between these Supplemental
rules and the Consolidated rules, (§§22.01 through
22.32), these Supplemental rules shall apply.
(b) Subpoenas. (1) The attendance of witnesses
or the production of documentary evidence may be
required by subpoena. The Presiding Officer may
grant a request for a subpoena upon a showing of
(i) the grounds and necessity therefor, and (ii) the
materiality and relevancy of the evidence to be ad-
duced. Requests for the production of documents
shall describe the evidence sought as specifically
as practicable.
(2) Subpoenas shall be served in accordance
with §22.05(b)(l) of the Consolidated Rules of
Practice.
(3) Witnesses summoned before the Presiding
Officer shall be paid the same fees and mileage
that are paid witnesses in the courts of the United
States. Fees shall be paid by the party at whose
instance the witness appears. Where a witness ap-
pears pursuant to a request initiated by the Presid-
ing Officer, fees shall be paid by the agency.
§22.34 Supplemental rules of practice
governing the administrative as-
sessment of civil penalties under
title II of the Clean Air Act.
(a) Scope of these Supplemental rules. These
Supplemental rules shall govern, in conjunction
with the preceding Consolidated Rules of Practice
(40 CFR part 22), all proceedings to assess a civil
penalty conducted under sections 205(c), 211(d),
and 213(d) of the Clean Air Act, as amended (42
U.S.C. 7524(c), 7545(d), and 7547(d)). Where in-
consistencies exist between these Supplemental
rules and the Consolidated Rules (§§22.01 through
22.32), these Supplemental rules shall apply.
(b) Issuance of notice. (1) Prior to the issuance
of an administrative penalty order assessing a civil
penalty, the person to whom the order is to be is-
sued shall be given written notice of the proposed
issuance of the order. Such notice shall be pro-
vided by the issuance of a complaint pursuant to
§22.13 of the Consolidated Rules of Practice.
(2) Notwithstanding §22.15(a), any answer to
the complaint must be filed with the Hearing
Clerk within thirty (30) days after service of the
complaint.
(c) Subpoenas. (1) The attendance of witnesses
or the production of documentary evidence may be
required by subpoena. The Presiding Officer may
grant a request for a subpoena upon a showing of;
(i) The grounds and necessity therefor, and
(ii) The materiality and relevancy of the evi-
dence to be adduced.
Requests for the production of documents shall de-
scribe with specificity the documents sought.
(2) Subpoenas shall be served in accordance
with §22.05(b)(l) of the Consolidated Rules of
Practice.
(3) Witnesses summoned before the Presiding
Officer shall be paid the same fees and mileage
that are paid in the courts of the United States.
Fees shall be paid by the party at whose instance
the witness appears. Where a witness appears pur-
suant to a request initiated by the Presiding Offi-
cer, fees shall be paid by EPA.
[57 FR 4318, Feb. 4, 1992]
§22.35 Supplemental rules of practice
governing the administrative as-
sessment of civil penalties under
the Federal Insecticide, Fungicide,
and Rodenticide Act.
(a) Scope of these Supplemental rules. These
Supplemental rules of practice shall govern, in
conjunction with the preceding Consolidated Rules
of Practice (40 CFR part 22), all formal adjudica-
tions for the assessment of any civil penalty con-
ducted under section 14(a) of the Federal Insecti-
cide, Fungicide, and Rodenticide Act as amended
(7 U.S.C. 1261(a)). Where inconsistencies exist
between these Supplemental rules and the Consoli-
dated rules, (§§22.01 through 22.32), these Sup-
plemental rules shall apply.
(b) Venue. The prehearing conference and the
hearing shall be held in the county, parish, or in-
corporated city of the residence of the person
charged, unless otherwise agreed in writing by all
parties.
(c) Evaluation of proposed civil penalty. In de-
termining the dollar amount of the recommended
civil penalty assessed in the initial decision, the
Presiding Officer shall consider, in addition to the
criteria listed in section 14(a)(3) of the Act, (1) re-
spondent's history of compliance with the Act or
14
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§22.37
its predecessor statute and (2) any evidence of
good faith or lack thereof. The Presiding Officer
must also consider the guidelines for the Assess-
ment of Civil Penalties published in the FEDERAL
REGISTER (39 FR 27711), and any amendments or
supplements thereto.
§ 22.36 Supplemental rules of practice
governing the administrative as-
sessment of civil penalties and the
revocation or suspension of permits
under the Marine Protection, Re-
search, and Sanctuaries Act.
(a) Scope of these Supplemental rules. These
Supplemental rules shall govern, in conjunction
with the preceding Consolidated Rules of Practice
(40 CFR part 22), all formal adjudications con-
ducted under section 105(a) or (f) of the Marine
Protection, Research, and Sanctuaries Act as
amended (33 U.S.C. 1415(a) and (f)). Where in-
consistencies exist between these Supplemental
rules and the Consolidated Rules, (§§22.01
through 22.32), these Supplemental rules shall
apply.
(b) Additional criterion for the issuance of a
complaint for the revocation or suspension of a
permit. In addition to the three criteria listed in 40
CFR 22.13 for issuing a complaint for the revoca-
tion or suspension of a permit, complaints may be
issued on the basis of a person's failure to keep
records and notify appropriate officials of dumping
activities, as required by 40 CFR 224.1 and 223.2.
§ 22.37 Supplemental rules of practice
governing the administrative as-
sessment of civil penalties under
the Solid Waste Disposal Act.
(a) Scope of these Supplemental rules. These
Supplemental rules of practice shall govern, in
conjunction with the preceding Consolidated Rules
of Practice (40 CFR part 22), all proceedings to
assess a civil penalty conducted under section
3008 of the Solid Waste Disposal Act (42 U.S.C.
6928) (the "Act"). Where inconsistencies exist
between these Supplemental rules and the Consoli-
dated Rules, (§§22.01 through 22.32), these Sup-
plemental rules shall apply.
(b) Issuance of notice. Whenever, on the basis
of any information, the Administrator determines
that any person is in violation of (1) any require-
ment of subtitle C of the Act, (2) any regulation
promulgated pursuant to subtitle C of the Act, or
(3) a term or condition of a permit issued pursuant
to subtitle C of the Act, the Administrator shall
issue notice to the alleged violator of his failure
to comply with such requirement, regulation or
permit.
(c) Content of notice. Each notice of violation
shall include:
(1) A specific reference to each provision of the
Act, regulation, or permit term or condition which
the alleged violator is alleged to have violated;
and
(2) A concise statement of the factual basis for
alleging such violation.
(d) Service of notice. Service of notice shall be
made in accordance with § 22.05(b)(2) of the Con-
solidated Rules of Practice.
(e) Issuance of the complaint. (1) Except as pro-
vided in paragraph (e)(3) of this section, the com-
plainant may issue a complaint whenever he has
reason to believe that any violation extends be-
yond the thirtieth day after service of the notice of
violation.
(2) The complaint shall include, in addition to
the elements stated in §22.14 of the Consolidated
Rules, an order requiring compliance within a
specified time period. The complaint shall be
equivalent to the compliance order referred to in
section 3008 of the Act.
(3) Whenever a violation is of a non-continuous
or intermittent nature, the Administrator may issue
a complaint, without any prior notice to the viola-
tor, pursuant to §22.14 of the Consolidated Rules
of Practice which may also require the violator to
take any and all measures necessary to offset all
adverse effects to health and the environment cre-
ated, directly or indirectly, as a result of the viola-
tion.
(4) Notwithstanding §22.15(a), any answer to
the complaint must be filed with the Regional
Hearing Clerk within thirty (30) days after the fil-
ing of the complaint.
(f) Subpoenas. (1) The attendance of witnesses
or the production of documentary evidence may be
required by subpoena. The Presiding Officer may
grant a request for a subpoena upon a showing of
(i) the grounds and necessity therefor, and (ii) the
materiality and relevancy of the evidence to be ad-
duced. Requests for the production of documents
shall describe with specificity the documents
sought.
(2) Subpoenas shall be served in accordance
with §22.05(b)(l) of the Consolidated Rules of
Practice.
(3) Witnesses summoned before the Presiding
Officer shall be paid the same fees and mileage
that are paid witnesses in the courts of the United
States. Fees shall be paid by the party at whose
instance the witness appears. Where a witness ap-
pears pursuant to a request initiated by the Presid-
ing Officer, fees shall be paid by the Agency.
(g) Final Orders to Federal Agencies on Ap-
peal. (1) In the case of an administrative order or
decision issued to a department, agency, or instru-
mentality of the United States, such order or deci-
sion shall become the final order for purposes of
the Federal Facility Compliance Act, 42 U.S.C.
15
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§22.38
696l(b), in accordance with §§22.27(c) and 22.31
except as provided in paragraph (g)(2) of this sec-
tion.
(2) In the case of an administrative order or de-
cision issued by the Environmental Appeals Board,
if the head of the affected department, agency, or
instrumentality requests a conference with the Ad-
ministrator in writing and serves a copy of the re-
quest on the parties of record within thirty days of
the Environmental Appeals Board's service of the
order or decision, a decision by the Administrator
(rather than the Environmental Appeals Board)
shall be the final order for the purposes of the
Federal Facility Compliance Act.
(3) In the event the department, agency, or in-
strumentality of the United States files a motion
for reconsideration with the Environmental Ap-
peals Board in accordance with §22.32, filing
such motion for reconsideration shall not toll the
thirty-day period for filing the request with the
Administrator for a conference unless specifically
so ordered by the Environmental Appeals Board.
(42 U.S.C. 6901, etseq.)
[45 FR 24363, Apr. 9, 1980, as amended at 61 FR 11092,
Mar. 18, 1996]
EFFECTIVE DATE NOTE: At 45 FR 79808, Dec. 2, 1980,
paragraphs (b), (c), (d), (e)(l) and (3) of §22.37 were
suspended until further notice, effective Dec. 2, 1980.
§22.38 Supplemental rules of practice
governing the administrative as-
sessment of Class II penalties under
the Clean Water Act.
(a) Scope of these supplemental rules. These
supplemental rules of practice shall govern, in
conjunction with the preceding Consolidated Rules
of Practice (40 CFR part 22), administrative pro-
ceedings for the assessment of any Class II civil
penalty under section 309(g) of the Clean Water
Act (33 U.S.C. 1319(g)).
(b) Consultation with states. The Administrator
will consult with the state in which the alleged
violation occurs before issuing a final order as-
sessing a Class II civil penalty.
(c) Public notice. Before issuing a final order
assessing a Class II civil penalty, the Adminis-
trator will provide public notice of the complaint.
(d) Comment by a person who is not a party.
A person not a party to the Class II proceeding
who wishes to comment upon a complaint must
file written comments with the Regional Hearing
Clerk within 30 days after public notice of the
complaint and serve a copy of the comments upon
each party. For good cause shown the Adminis-
trator, the Regional Administrator, or the Presiding
Officer, as appropriate, may accept late comments.
The Administrator will give any person who com-
ments on a complaint notice of any hearing and
notice of the final order assessing a penalty. Al-
though commenters may be heard and present evi-
dence at any hearing held under section 309(g) of
the Act, commenters shall not be accorded party
status with right of cross examination unless they
formally move to intervene and are granted party
status under §22.11.
(e) Administrative procedure and judicial re-
view. Action of the Administrator for which re-
view could have been obtained under section
509(b)(l) of the Act shall not be subject to review
in an administrative proceeding for the assessment
of Class II civil penalty under section 309(g).
(f) Petitions to set aside an order and to pro-
vide a hearing. If no hearing on the complaint is
held before issuance of an order assessing a Class
II civil penalty, any person who commented on the
complaint may petition the Administrator, within
30 days after issuance of the order, to set aside the
order and to provide a hearing on the complaint.
If the evidence presented by the petitioner in sup-
port of the petition is material and was not consid-
ered in the issuance of the order, the Administrator
will immediately set aside the order and provide
a hearing in accordance with the Consolidated
Rules of Practice and these supplemental rules of
practice. If the Administrator denies a hearing
under section 309(g)(4)(C) of the Act, the Admin-
istrator will provide to the petitioner, and publish
in the FEDERAL REGISTER, notice of and the rea-
sons for the denial.
[55 FR 23840, June 12, 1990]
§ 22.39 Supplemental rules of practice
governing the administrative as-
sessment of administrative pen-
alties under section 109 of the Com-
prehensive Environmental Re-
sponse, Compensation, and Liabil-
ity Act of 1980, as amended.
(a) Scope of these Supplemental rules. These
Supplemental rules of practice shall govern, in
conjunction with the preceding Consolidated Rules
of Practice (40 CFR part 22), administrative pro-
ceedings for the assessment of any civil penalty
under section 109 of the Comprehensive Environ-
mental Response, Compensation, and Liability Act
of 1980, as amended (42 U.S.C. 9609). Where in-
consistencies exist between these Supplemental
rules and the Consolidated Rules (§§22.01 through
22.32), these Supplemental rules shall apply.
(b) Subpoenas. (1) The attendance and testi-
mony of witnesses or the production of relevant
papers, books, and documents may be required by
subpoena. The Presiding Officer may grant a re-
quest for a subpoena upon a showing of—
(i) The grounds and necessity therefor, and
(ii) The materiality and relevancy of the evi-
dence to be adduced.
16
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§22.40
Requests for the production of documents shall de-
scribe the evidence sought as specifically as prac-
ticable.
(2) Subpoenas shall be served in accordance
with §22.05(b)(l) of the Consolidated Rules of
Practice.
(3) Witnesses summoned before the Presiding
Officer shall be paid the same fees and mileage
that are paid witnesses in the courts of the United
States. Fees shall be paid by the party at whose
instance the witness appears. Where a witness ap-
pears pursuant to a request initiated by the Presid-
ing Officer, fees shall be paid by the Agency.
(c) Judicial review. Any person who requested
a hearing with respect to a Class II civil penalty
under section 109 of CERCLA and who is the re-
cipient of a final order assessing a civil penalty
may file a petition for judicial review of such
order with the United States Court of Appeals for
the District of Columbia or for any other circuit
in which such person resides or transacts business.
Any person who requested a hearing with respect
to a Class I civil penalty under section 109 of
CERCLA and who is the recipient of a final order
assessing the civil penalty may file a petition for
judicial review of such order with the appropriate
district court of the United States. All petitions
must be filed within 30 days of the date the order
making the assessment was issued.
(d) Payment of civil penalty assessed. Payment
of civil penalties finally assessed by the Regional
Administrator shall be made by forwarding a cash-
ier's check, payable to the "EPA, Hazardous Sub-
stances Superfund," in the amount assessed, and
noting the case title and docket number, to the ap-
propriate regional Superfund Lockbox Depository.
Notice of payment must be sent by Respondent to
the Hearing Clerk for inclusion as part of the ad-
ministrative record for the proceeding in which the
civil penalty was assessed. Interest on overdue
payments shall be collected pursuant to the Debt
Collection Act, 37 U.S.C. 3717.
[54 FR 21176, May 16, 1989]
§22.40 Supplemental rules of practice
governing the administrative as-
sessment of administrative pen-
alties under section 325 of the
Emergency Planning and Commu-
nity Right-To-Know Act of 1986
(EPCRA).
(a) Scope of these Supplemental Rules. These
Supplemental rules of practice shall govern, in
conjunction with the preceding Consolidated Rules
of Practice (40 CFR part 22), administrative pro-
ceedings for the assessment of any civil penalty
under section 325 for violations of the Emergency
Planning and Community Right-To-Know Act of
1986 (EPCRA). Where inconsistencies exist be-
tween these Supplemental rules and the Consoli-
dated Rules, (§§22.01 through 22.32) these Sup-
plemental rules shall apply.
(b) Subpoenas. (1) The attendance and testi-
mony of witnesses or the production of relevant
papers, books, and documents may be required by
subpoena. The Presiding Officer may grant a re-
quest for a subpoena upon a showing of (i) the
grounds and necessity therefore, and (ii) the mate-
riality and relevancy of the evidence to be ad-
duced. Requests for the production of documents
shall describe the evidence sought as specifically
as practicable.
(2) Subpoenas shall be served in accordance
with §22.05(b)(l) of the Consolidated Rules of
Practice.
(3) Witnesses summoned before the Presiding
Officer shall be paid the same fees and mileage
that are paid witnesses in the courts of the United
States. Fees shall be paid by the party at whose
instance the witness appears. Where a witness ap-
pears pursuant to request initiated by the Presiding
Officer, fees shall be paid by the Agency.
(c) Judicial review. Any person against whom a
civil penalty is assessed may seek judicial review
in the appropriate district court of the United
States by filing a notice of appeal and by simulta-
neously sending a copy of such notice by certified
mail to the Administrator. The notice must be filed
within 30 days of the date the order making such
assessment was issued. The Administrator shall
promptly file in such court a certified copy of the
record upon which such violation was found or
such penalty imposed.
(d) Procedures for collection of civil penalty. If
any person fails to pay an assessment of a civil
penalty after it has become a final and
unappealable order or after the appropriate court
has entered final judgment in favor of the United
States, the Administrator may request the Attorney
General of the United States to institute a civil ac-
tion in an appropriate district court of the United
States to collect the penalty, and such court shall
have jurisdiction to hear and decide any such ac-
tion. In hearing such action, the court shall have
authority to review the violation and the assess-
ment of the civil penalty on the record. Interest on
overdue payments shall be collected pursuant to
the Debt Collection Act, 37 U.S.C. 3717.
[54 FR 21176, May 16, 1989]
17
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§22.41
§22.41 Supplemental rules of practice
governing the administrative as-
sessment of civil penalties under
Title II of the Toxic Substances
Control Act, enacted as section 2 of
the Asbestos Hazard Emergency Re-
sponse Act (AHERA).
(a) Scope of the Supplemental rules. These Sup-
plemental rules of practice shall govern, in con-
junction with the preceding Consolidated Rules of
Practice (40 CFR part 22), all proceedings to as-
sess a civil penalty conducted under section 207 of
the Toxic Substances Control Act (the "Act") (15
U.S.C. 2647). Where inconsistencies exist between
these Supplemental rules and the Consolidated
rules (§§22.01 through 22.32), these Supplemental
rules shall apply.
(b) Collection of civil penalty. Any civil penalty
collected under section 207 of the Act shall be
used by the local educational agency for purposes
of complying with Title II of the Act. Any portion
of a civil penalty remaining unspent after a local
educational agency achieves compliance shall be
deposited into the Asbestos Trust Fund established
under section 5 of AHERA.
[54 FR 24112, June 5, 1989]
§22.42 Supplemental rules of practice
governing the administrative as-
sessment of civil penalties for viola-
tions of compliance orders issued
under Part B of the Safe Drinking
Water Act.
(a) Scope of these supplemental rules. These
supplemental rules of practice shall govern, in
conjunction with the preceding Consolidated Rules
of Practice (40 CFR part 22), all proceedings to
assess a civil penalty under section 1414(g)(3)(B).
Where inconsistencies exist between these supple-
mental rules and the Consolidated rules, these sup-
plemental rules shall apply.
(b) Definition of ' 'person.'' In addition to the
terms set forth in 40 CFR 22.03(a) that define per-
son, for purposes of this section and proceedings
under section 1414(g)(3)(B) of the Safe Drinking
Water Act, the term person shall also include any
officer, employee, or agent of any corporation,
company or association.
(c) Issuance of complaint. If the Administrator
determines that a person has violated any provi-
sion of a compliance order issued under section
1414(g)(l) of the Safe Drinking Water Act, 42
U.S.C. 300g-3(g)(l), he may institute a proceed-
ing for the assessment of a civil penalty by issuing
a complaint under the Act and this part.
(d) Content of the complaint. A complaint for
the assessment of civil penalties under this part
shall include specific reference to:
(1) Each provision of the compliance order is-
sued under section 1414(g)(l) of the Act, 42
U.S.C. 300g-3(g)(l), which is alleged to have vio-
lated; and
(2) Each violation of a Safe Drinking Water Act
regulation, schedule, or other requirement which
served as the basis for the compliance order which
is alleged to have been violated.
(e) Scope of hearing. Action of the Adminis-
trator with respect to which judicial review could
have been obtained under section 1448 of the Safe
Drinking Water Act, 42 U.S.C. 300J-7, shall not
be subject to review in an administrative proceed-
ing for the assessment of a civil penalty under sec-
tion 1414(g)(3)(B) of the SDWA and this part.
[56 FR3757, Jan. 30, 1991]
§22.43 Supplemental rules of practice
governing the administrative as-
sessment of civil penalties under
section 113(d)(l) of the Clean Air
Act.
(a) Scope of these Supplemental rules. These
Supplemental rules shall govern, in conjunction
with the preceding Consolidated Rules of Practice
(40 CFR part 22), all proceedings to assess a civil
penalty conducted under section 113(d)(l) of the
Clean Air Act (42 U.S.C. 7413(d)(l)). Where in-
consistencies exist between these Supplemental
rules and the Consolidated Rules (§§22.01 through
22.32), these Supplemental rules shall apply.
(b) Issuance of notice. (1) Prior to the issuance
of an administrative penalty order assessing a civil
penalty, the person to whom the order is to be is-
sued shall be given written notice of the proposed
issuance of the order. Such
notice shall be provided by the issuance of a com-
plaint pursuant to §22.13 of the Consolidated
Rules of Practice.
(2) Notwithstanding §22.15(a), any answer to
the complaint must be filed with the Regional
Hearing Clerk within thirty (30) days after service
of the complaint.
(c) Subpoenas. (1) The attendance of witnesses
or the production of documentary evidence may be
required by subpoena. The Presiding Officer may
grant a request for a subpoena upon a showing of;
(i) The grounds and necessity therefor, and
(ii) The materiality and relevancy of the evi-
dence to be adduced.
Requests for the production of documents shall de-
scribe with specificity the documents sought.
(2) Subpoenas shall be served in accordance
with §22.05(b)(l) of the Consolidated Rules of
Practice.
(3) Witnesses summoned before the Presiding
Officer shall be paid the same fees and mileage
that are paid in the courts of the United States.
18
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Pt. 22, App.
Fees shall be paid by the party at whose instance
the witness appears. Where a witness appears pur-
suant to a request initiated by the Presiding Offi-
cer, fees shall be paid by EPA.
[57 FR 4318, Feb. 4, 1992]
APPENDIX TO PART 22—ADDRESSES OF EPA
REGIONAL OFFICES
Region I—John F. Kennedy Federal Building, Boston,
MA 02203.
Region 11—26 Federal Plaza, New York, NY 10007.
Region III—Curtis Building, 6th and Walnut Streets,
Philadelphia, PA 19106.
Region IV—345 Courtland Street NE., Atlanta, GA
30308.
Region V—77 West Jackson Boulevard, Chicago, IL
60604.
Region VI—First International Building, 1201 Elm Street,
Dallas, TX 75270.
Region VII—1735 Baltimore Street, Kansas City, MO
64108.
Region VIII—1860 Lincoln Street, Denver, CO 80203.
Region IX—215 Fremont Street, San Francisco, CA
94105.
Region X—1200 6th Avenue, Seattle, WA 98101.
[45 FR 24363, Apr. 4, 1980, as amended at 62 FR 1833,
Jan. 14, 1997]
19
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PART 23—JUDICIAL REVIEW UNDER
EPA—ADMINISTERED STATUTES
Sec.
23.1 Definitions.
23.2 Timing of Administrator's action under Clean
Water Act.
23.3 Timing of Administrator's action under Clean Air
Act.
23.4 Timing of Administrator's action under Resource
Conservation and Recovery Act.
23.5 Timing of Administrator's action under Toxic Sub-
stances Control Act.
23.6 Timing of Administrator's action under Federal In-
secticide, Fungicide and Rodenticide Act.
23.7 Timing of Administrator's action under Safe Drink-
ing Water Act.
23.8 Timing of Administrator's action under Uranium
Mill Tailings Radiation Control Act of 1978.
23.9 Timing of Administrator's action under the Atomic
Energy Act.
23.10 Timing of Administrator's action under the Fed-
eral Food, Drug, and Cosmetic Act.
23.11 Holidays.
23.12 Filing notice of judicial review.
AUTHORITY: Clean Water Act, 33 U.S.C. 1361 (a),
1369(b); Clean Air Act, 42 U.S.C. 7601(a)(l), 7607(b);
Resource, Conservation and Recovery Act, 42 U.S.C.
6912(a), 6976; Toxic Substances Control Act, 15 U.S.C.
2618; Federal Insecticide, Fungicide, and Rodenticide
Act, 7 U.S.C. 136n(b), 136w(a); Safe Drinking Water
Act, 42 U.S.C. 300j-7(a)(2), 300j-9(a); Atomic Energy
Act, 42 U.S.C. 2201, 2239; Federal Food, Drug, and Cos-
metic Act, 21 U.S.C. 371(a), 346a, 348; 28 U.S.C.
2112(a), 2343, 2344.
SOURCE: 50 FR 7270, Feb. 21, 1985, unless otherwise
noted.
§23.1 Definitions.
As used in this part, the term:
(a) Federal Register document means a docu-
ment intended for publication in the Federal Reg-
ister and bearing in its heading an identification
code including the letters FRL.
(b) Admininstrator means the Administrator or
any official exercising authority delegated by the
Administrator.
(c) General Counsel means the General Counsel
of EPA or any official exercising authority dele-
gated by the General Counsel.
[50 FR 7270, Feb. 21, 1985, as amended at 53 FR 29322,
Aug. 3, 1988]
§23.2 Timing of Administrator's action
under Clean Water Act.
Unless the Administrator otherwise explicity
provides in a particular promulgation or approval
action, the time and date of the Administrator's
action in promulgation (for purposes of sections
509(b)(l) (A), (C), and (E)), approving (for pur-
poses of section 509(b)(l)(E)), making a deter-
mination (for purposes of section 509(b)(l) (B)
and (D), and issuing or denying (for purposes of
section 509(b)(l)(F)) shall be at 1:00 p.m. eastern
time (standard or daylight, as appropriate) on (a)
for a FEDERAL REGISTER document, the date that
is two weeks after the date when the document is
published in the FEDERAL REGISTER, or (b) for
any other document, two weeks after it is signed.
§ 23.3 Timing of Administrator's action
under Clean Air Act.
Unless the Administrator otherwise explicitly
provides in a particular promulgation, approval, or
action, the time and date of such promulgation,
approval or action for purposes of the second sen-
tence of section 307(b)(l) shall be at 1:00 p.m.
eastern time (standard or daylight, as appropriate)
on (a) for a FEDERAL REGISTER document, the
date when the document is published in the FED-
ERAL REGISTER, or (b) for any other document,
two weeks after it is signed.
§23.4 Timing of Administrator's action
under Resource Conservation and
Recovery Act.
Unless the Administrator otherwise explicitly
provides in taking a particular action, for purposes
of section 7006(b), the time and date of the Ad-
ministrator's action in issuing, denying, modifying,
or revoking any permit under section 3005, or in
granting, denying, or withdrawing authorization or
interim authorization under section 3006, shall be
at 1:00 p.m. eastern time (standard or daylight, as
appropriate) on the date that is (a) for a FEDERAL
REGISTER document, two weeks after the date
when the document is published in the FEDERAL
REGISTER, or (b) for any other document, two
weeks after it is signed.
§23.5 Timing of Administrator's action
under Toxic Substances Control
Act.
Unless the Administrator otherwise explicitly
provides in promulgating a particular rule or issu-
ing a particular order, the time and date of the Ad-
ministrator's promulgation or issuance for pur-
poses of section 19(a)(l) shall be at 1:00 p.m.
eastern time (standard or daylight, as appropriate)
on the date that is (a) for a FEDERAL REGISTER
document, two weeks after the date when the doc-
ument is published in the FEDERAL REGISTER, or
(b) for any other document, two weeks after it is
signed.
§23.6 Timing of Administrator's action
under Federal Insecticide, Fun-
gicide and Rodenticide Act.
Unless the Administrator otherwise explicitly
provides in a particular order, the time and date of
-------
§23.7
entry of an order issued by the Administrator fol-
lowing a public hearing for purposes of section
16(b) shall be at 1:00 p.m. eastern time (standard
or daylight, as appropriate) on the date that is two
weeks after it is signed.
§23.7 Timing of Administrator's action
under Safe Drinking Water Act.
Unless the Administrator otherwise explicitly
provides in a particular promulgation action or de-
termination, the time and date of the Administra-
tor's promulgation, issuance, or determination for
purposes of section 1448(a)(2) shall be at 1:00
p.m. eastern time (standard or daylight, as appro-
priate) on the date that is (a) for a FEDERAL REG-
ISTER document, two weeks after the date when
the document is published in the FEDERAL REG-
ISTER or (b) for any other document, two weeks
after it is signed.
§ 23.8 Timing of Administrator's action
under Uranium Mill Tailings Radi-
ation Control Act of 1978.
Unless the Administrator otherwise explicitly
provides in a particular rule, the time and date of
the Administrator's promulgation for purposes of
42 U.S.C. 2022(c)(2) shall be at 1:00 p.m. eastern
time (standard or daylight, as appropriate) on the
date that is two weeks after the date when notice
of promulgation is published in the FEDERAL REG-
ISTER.
§ 23.9 Timing of Administrator's action
under the Atomic Energy Act.
Unless the Administrator otherwise explicitly
provides in a particular order, the time and date of
the entry of an order for purposes of 28 U.S.C.
2344 shall be at 1:00 p.m. eastern time (standard
or daylight, as appropriate) on the date that is two
weeks after the date when notice thereof is pub-
lished in the FEDERAL REGISTER.
§23.10 Timing of Administrator's ac-
tion under the Federal Food, Drug,
and Cosmetic Act.
Unless the Administrator otherwise explicitly
provides in a particular order, the time and date of
the entry of an order issued after a public hearing
for purposes of 21 U.S.C. 346a(i) or 348(g) shall
be at 1:00 p.m. eastern time (standard or daylight,
as appropriate) on the date that is (a) for a FED-
ERAL REGISTER document, two weeks after the
date when the document is published in the FED-
ERAL REGISTER, or (b) for any other document,
two weeks after it is signed.
§23.11 Holidays.
If the date determined under §§23.2 to 23.10
falls on a Federal holiday, then the time and date
of the Administrator's action shall be at 1:00 p.m.
eastern time on the next day that is not a Federal
holiday.
§23.12 Filing notice of judicial review.
(a) For the purposes of 28 U.S.C. 2112(a), a
copy of any petition filed in any United States
Court of Appeals challenging a final action of the
Administrator shall be sent by certified mail, re-
turn receipt requested, or by personal delivery to
the General Counsel. The petition copy shall be
time-stamped by the Clerk of the Court when the
original is filed with the Court. The petition
should be addressed to: Correspondence Control
Unit, Office of General Counsel (LE-130), U.S.
Environmental Protection Agency, 401 M Street
SW., Washington, DC 20460.
(b) If the General Counsel receives two or more
petitions filed in two or more United States Courts
of Appeals for review of any Agency action with-
in ten days of the effective date of that action for
purposes of judicial review (as specified under
§§23.2 through 23.10 of this part), the General
Counsel will notify the United States Judicial
Panel of Multidistrict Litigation of any petitions
that were received within the ten day period, in
accordance with the applicable rules of the Panel.
(c) For purposes of determining whether a peti-
tion for review has been received within the ten
day period under paragraph (b) of this section, the
petition shall be considered received on the date of
service, if served personally. If service is accom-
plished by mail, the date of receipt shall be con-
sidered to be the date noted on the return receipt
card.
[53 FR 29322, Aug. 3,
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PART 24—RULES GOVERNING ISSU-
ANCE OF AND ADMINISTRATIVE
HEARINGS ON INTERIM STATUS
CORRECTIVE ACTION ORDERS
Subpart A—General
Sec.
24.01 Scope of these rules.
24.02 Issuance of initial orders; definition of final orders
and orders on consent.
24.03 Maintenance of docket and official record.
24.04 Filing and service of orders, decisions, and docu-
ments.
24.05 Response to the initial order; request for hearing.
24.06 Designation of Presiding Officer.
24.07 Informal settlement conference.
24.08 Selection of appropriate hearing procedures.
Subpart B—Hearings on Orders Requiring
Investigations or Studies
24.09 Qualifications of Presiding Officer; ex parte dis-
cussion of the proceeding.
24.10 Scheduling the hearing; pre-hearing submissions
by respondent.
24.11 Hearing; oral presentations and written submis-
sions by the parties.
24.12 Summary of hearing; Presiding Officer's rec-
ommendation.
Subpart C—Hearings on Orders Requiring
Corrective Measures
24.13 Qualifications of Presiding Officer; ex parte dis-
cussion of the proceeding.
24.14 Scheduling the hearing; pre-hearing submissions
by the parties.
24.15 Hearing; oral presentations and written submis-
sions by the parties.
24.16 Transcript or recording of hearing.
24.17 Presiding Officer's recommendation.
Subpart D—Post-Hearing Procedures
24.18 Final decision.
24.19 Final order.
24.20 Final agency action.
AUTHORITY: 42 U.S.C. sections 6912, 6928, 6991b.
SOURCE: 53 FR 12263, Apr. 13, 1988, unless otherwise
noted.
Subpart A—General
§ 24.01 Scope of these rules.
(a) These rules establish procedures governing
issuance of administrative orders for corrective ac-
tion pursuant to sections 3008(h) and 9003(h) of
the Solid Waste Disposal Act, as amended by the
Resource Conservation and Recovery Act (the
Act), and conduct of administrative hearings on
such orders, except as specified in paragraphs (b)
and (c) of this section.
(b) The hearing procedures appearing at 40 CFR
part 22 govern administrative hearings on any
order issued pursuant to section 3008(h) of the Act
which:
(1) Is contained within an administrative order
that includes claims under section 3008(a) of the
Act; or
(2) Includes a suspension or revocation of au-
thorization to operate under section 3005(e) of the
Act; or
(3) Seeks penalties under section 3008(h)(2) of
the Act for non-compliance with a section 3008(h)
order.
(c) The hearing procedures appearing at 40 CFR
part 22 govern administrative hearings on any
order issued pursuant to section 9003(h) of the Act
that is contained within an administrative order
that includes claims under section 9006 of the Act.
(d) Questions arising at any stage of the pro-
ceeding which are not addressed in these rules
shall be resolved at the discretion of the Regional
Administrator or Presiding Officer, as appropriate.
[53 FR 12263, Apr. 13,
49380, Sept. 27, 1991]
as amended at 56 FR
§ 24.02 Issuance of initial orders; defi-
nition of final orders and orders on
consent.
(a) An administrative action under section
3008(h) or 9003(h) of the Act shall be commenced
by issuance of an administrative order. When the
order is issued unilaterally, the order shall be re-
ferred to as an initial administrative order and may
be referenced as a proceeding under section
3008(h) or 9003(h) of the Act. When the order has
become effective, either after issuance of a final
order following a final decision by the Regional
Administrator, or after thirty days from issuance if
no hearing is requested, the order shall be referred
to as a final administrative order. Where the order
is agreed to by the parties, the order shall be de-
nominated as a final administrative order on con-
sent.
(b) The initial administrative order shall be exe-
cuted by an authorized official of EPA (petitioner),
other than the Regional Administrator or the As-
sistant Administrator for the Office of Solid Waste
and Emergency Response. For orders issued by
EPA Headquarters, rather than by a Regional of-
fice, all references in these procedures to the Re-
gional Administrator shall be understood to be to
the Assistant Administrator for Solid Waste and
Emergency Response or his delegatee.
(c) The initial administrative order shall contain:
(1) A reference to the legal authority pursuant
to which the order is issued,
(2) A concise statement of the factual basis
upon which the order is issued, and
-------
§24.03
(3) Notification of respondent's right to request
a hearing with respect to any issue of material fact
or the appropriateness of the proposed corrective
action.
[53 FR 12263, Apr. 13,
49380, Sept. 27, 1991]
as amended at 56 FR
§ 24.03 Maintenance of docket and offi-
cial record.
(a) A Clerk shall be designated by the Regional
Administrator to receive all initial orders, final or-
ders, decisions, responses, memoranda, and docu-
ments regarding the order and to maintain the offi-
cial record and docket.
(b) On or before the date the initial order is
served on respondent the EPA office issuing the
order shall deliver to the Clerk (a copy of) the ad-
ministrative record supporting the findings of fact,
determinations of law, and relief sought in the ini-
tial administrative order. This record shall include
all relevant documents and oral information
(which has been reduced to writing), which the
Agency considered in the process of developing
and issuing the order, exclusive of privileged inter-
nal communications. The administrative record de-
livered to the Clerk must have an index and be
available for review in the appropriate Agency Re-
gional or Headquarters office during normal busi-
ness hours after the order is issued.
§ 24.04 Filing and service of orders, de-
cisions, and documents.
(a) Filing of orders, decisions, and documents.
The original and one copy of the initial adminis-
trative order, the recommended decision of the
Presiding Officer, the final decision and the final
administrative order, and one copy of the adminis-
trative record and an index thereto must be filed
with the Clerk designated for 3008(h) or 9003(h)
orders. In addition, all memoranda and documents
submitted in the proceeding shall be filed with the
clerk.
(b) Service of orders, decisions, and rulings.
The Clerk (or in the case of the initial administra-
tive order, any other designated EPA employee)
shall arrange for the effectuation of service of the
initial administrative order, the recommended deci-
sion of the Presiding Officer, the final decision,
and final administrative order. Service of a copy
of the initial administrative order together with a
copy of these procedures, the recommended deci-
sion of the Presiding Officer, the final decision, or
a final administrative order, shall be made person-
ally or by certified mail, return receipt requested
or, if personal service cannot be effectuated or cer-
tified mail is returned refused or unsigned, by reg-
ular mail, on the respondent or his representative.
The Clerk shall serve other documents from the
Presiding Officer by regular mail.
(c) Service of documents filed by the parties.
Service of all documents, filed by the parties, shall
be made by the parties or their representatives on
other parties or their representatives and may be
regular mail, with the original filed with the Clerk.
The original of any pleading, letter, or other docu-
ment (other than exhibits) shall be signed by the
party filing or by his counsel or other representa-
tive. The signature constitutes a representation by
the signer that he has read the pleading, letter, or
other document, that to the best of his knowledge,
information, and belief, the statements made there-
in are true, and that it is not interposed for delay.
(d) Service in general. Service of orders, deci-
sions, rulings, or documents by either the Clerk or
the parties shall, in the case of a domestic or for-
eign corporation, a partnership, or other unincor-
porated association, which is subject to suit under
a common name, be made, as prescribed in
§24.04 (b) and (c), upon an officer, partner, man-
aging or general agent, or any person authorized
by appointment or by Federal or State law to re-
ceive service of process.
(e) Effective date of service. Service of the ini-
tial administrative order and final administrative
order is complete upon receipt by respondent (or
the respondent's agent, attorney, representative or
other person employed by respondent and receiv-
ing such service), personally or by certified mail,
or upon mailing by regular mail, if personal serv-
ice or service by certified mail cannot be accom-
plished, in accordance with § 24.04(b). Service of
all other pleadings and documents is complete
upon mailing, except as provided in §§24.10(b)
and 24.14(e).
[53 FR 12263, Apr. 13,
49380, Sept. 27, 1991]
as amended at 56 FR
§ 24.05 Response to the initial order;
request for hearing.
(a) The initial administrative order becomes a
final administrative order thirty (30) days after
service of the order, unless the respondent files
with the Clerk within thirty (30) days after service
of the order, a response to the initial order and re-
quests a hearing.
(b) The response to the initial order and request
for a hearing must be in writing and mailed to, or
personally served on, the Clerk of the Regional of-
fice which issued the order.
(c) The response to the initial order shall speci-
fy each factual or legal determination, or relief
provision in the initial order the respondent dis-
putes and shall briefly indicate the basis upon
which it disputes such determination or provision.
(d) Respondent may include with its response to
the initial order and request for a hearing a state-
ment indicating whether it believes the subpart B
or subpart C hearing procedures should be em-
-------
§24.10
ployed for the requested hearing and the reason(s)
therefore.
§ 24.06 Designation of Presiding Offi-
cer.
Upon receipt of a request for a hearing, the Re-
gional Administrator shall designate a Presiding
Officer to conduct the hearing and preside over
the proceedings.
§ 24.07 Informal settlement conference.
The respondent may request an informal settle-
ment conference at any time by contacting the ap-
propriate EPA employee, as specified in the initial
administrative order. A request for an informal
conference will not affect the respondent's obliga-
tions to timely request a hearing. Whether or not
the respondent requests a hearing, the parties may
confer informally concerning any aspect of the
order. The respondent and respondent's representa-
tives shall generally be allowed the opportunity at
an informal conference to discuss with the appro-
priate Agency technical and legal personnel all as-
pects of the order, and in particular the basis for
the determination that a release has occurred and
the appropriateness of the ordered corrective ac-
tion.
§ 24.08 Selection of appropriate hear-
ing procedures.
(a) The hearing procedures set forth in subpart
B of this part shall be employed for any requested
hearing if the initial order directs the respond-
ent
(1) To undertake only a RCRA Facility Inves-
tigation and/or Corrective Measures Study, which
may include monitoring, surveys, testing, informa-
tion gathering, analyses, and/or studies (including
studies designed to develop recommendations for
appropriate corrective measures), or
(2) To undertake such investigations and/or
studies and interim corrective measures, and if
such interim corrective measures are neither costly
nor technically complex and are necessary to pro-
tect human health and the environment prior to de-
velopment of a permanent remedy, or
(3) To undertake investigations/studies with re-
spect to a release from an underground storage
tank.
(b) The hearing procedures set forth in subpart
C of this part shall be employed if the respondent
seeks a hearing on an order directing that
(1) Corrective measures or such corrective
measures together with investigations/studies be
undertaken, or
(2) Corrective action or such corrective action
together with investigations/studies be undertaken
with respect to any release from an underground
storage tank.
(c) The procedures contained in subparts A and
D of this part shall be followed regardless of
whether the initial order directs the respondent to
undertake an investigation pursuant to the proce-
dures in subpart B of this part, or requires the re-
spondent to implement corrective measures pursu-
ant to the procedures in subpart C of this part.
[56 FR 49380, Sept. 27, 1991]
Subpart B—Hearings on Orders
Requiring Investigations or Studies
§ 24.09 Qualifications of Presiding Offi-
cer; ex parte discussion of the pro-
ceeding.
The Presiding Officer shall be either the Re-
gional Judicial Officer (as described in 40 CFR
22.04(b)) or another attorney employed by the
Agency, who has had no prior connection with the
case, including the performance of any investiga-
tive or prosecuting functions. At no time after is-
suance of the initial administrative order and prior
to issuance of the final order shall the Regional
Administrator, Presiding Officer, or any person
who will advise these officials in the decision on
the case, discuss ex parte the merits of the pro-
ceeding with any interested person outside the
Agency, with any Agency staff member who per-
forms a prosecutorial or investigative function in
such proceeding or a factually related proceeding,
or with any representative of such person. If, after
issuance of the initial order and prior to issuance
of the final order, the Regional Administrator, Pre-
siding Officer, or any person who will advise
these officials in the decision on the case receives
from or on behalf of any party in an ex parte com-
munication information which is relevant to the
decision on the case and to which other parties
have not had an opportunity to respond, a sum-
mary of such information shall be served on all
other parties, who shall have an opportunity to
reply to same within ten (10) days of service of
the summary.
§24.10 Scheduling the hearing; pre-
hearing submissions by respondent.
(a) Date and time for hearing. The Presiding
Officer shall establish the date, time, location, and
agenda for the requested public hearing and trans-
mit this information to the parties. Subject to
§24.10(c), the hearing shall be scheduled and held
within thirty (30) days of the Agency's receipt of
the request for a public hearing.
(b) Pre-hearing submissions by respondent. At
any time up to five (5) business days before the
hearing respondent may, but is not required to,
submit for inclusion in the administrative record
information and argument supporting respondent's
-------
§24.11
positions on the facts, law and relief, as each re-
lates to the order in question. A copy of any infor-
mation or argument submitted by respondent shall
be served such that the Clerk and petitioner re-
ceive same at least five (5) business days before
hearing.
(c) Postponment of hearing. The Presiding Offi-
cer may grant an extension of time for the conduct
of the hearing upon written request of either party,
for good cause shown, and after consideration of
any prejudice to other parties. The Presiding Offi-
cer may not extend the date by which the request
for hearing is due under § 24.05(a).
(d) Location of hearing. The hearing shall be
held in the city in which the relevant EPA Re-
gional Office is located, unless the Presiding Offi-
cer determines that there is good cause to hold it
in another location.
§24.11 Hearing; oral presentations and
written submissions by the parties.
The Presiding Officer shall conduct the hearing
in a fair and impartial way, taking action as need-
ed to avoid unnecessary delay, exclude redundant
material and maintain order during the proceed-
ings. Representatives of EPA shall introduce the
administrative record and be prepared to summa-
rize the basis for the order. The respondent shall
have a reasonable opportunity to address relevant
issues and present its views through legal counsel
or technical advisors. The Presiding Officer may
also allow technical and legal discussions and
interchanges between the parties, including re-
sponses to questions to the extent deemed appro-
priate. It is not the Agency's intent to provide
EPA or respondent an opportunity to engage in di-
rect examination or cross-examination of wit-
nesses. The Presiding Officer may address ques-
tions to the respondent's or EPA's
representative(s) during the hearing. Each party
shall insure that a representative(s) is (are) present
at the hearing, who is (are) capable of responding
to questions and articulating that party's position
on the law and facts at issue. Where respondent
can demonstrate that through no fault of its own
certain documents supportive of its position could
not have been submitted before hearing in accord-
ance with the requirements of §24.10(b), it may
submit such documents at the hearing. Otherwise
no new documentary support may be submitted at
hearing. The Presiding Officer may upon request
grant petitioner leave to respond to submissions
made by respondent pursuant to this section or
§24.10(b). The Presiding Officer shall have the
discretion to order either party to submit additional
information (including but not limited to
posthearing briefs on undeveloped factual, tech-
nical, or legal matters) in whatever form he deems
appropriate either at or after the hearing.
§24.12 Summary of hearing; Presiding
Officer's recommendation.
(a) As soon as practicable after the conclusion
of the hearing a written summary of the proceed-
ing shall be prepared. This summary shall, at a
minimum, identify:
(1) The dates of and known attendees at the
hearing; and
(2) The bases upon which the respondent con-
tested the terms of the order.
The summary must be signed by the Presiding Of-
ficer.
(b) The Presiding Officer will evaluate the en-
tire administrative record and, on the basis of that
review and the representations of EPA and re-
spondent at the hearing, shall prepare and file a
recommended decision with the Regional Admin-
istrator. The recommended decision must address
all material issues of fact or law properly raised
by respondent, and must recommend that the order
be modified, withdrawn or issued without modi-
fication. The recommended decision must provide
an explanation with citation to material contained
in the record for any decision to modify a term of
the order, to issue the order without change, or to
withdraw the order. The recommended decision
shall be based on the administrative record. If the
Presiding Officer finds that any contested relief
provision in the order is not supported by a pre-
ponderance of the evidence in the record, the Pre-
siding Officer shall recommend that the order be
modified and issued on terms that are supported
by the record or withdrawn.
(c) At any time within twenty-one (21) days of
service of the recommended decision on the par-
ties, the parties may file comments on the rec-
ommended decision with the Clerk. The Clerk
shall promptly transmit any such comments re-
ceived to the Regional Administrator for his con-
sideration in reaching a final decision.
Sub part C—Hearings on Orders
Requiring Corrective Measures
§ 24.13 Qualifications of Presiding Offi-
cer; ex parte discussion of the pro-
ceeding.
(a) Qualifications of Presiding Officer. The Pre-
siding Officer shall be either the Regional Judicial
Officer (as described in 40 CFR 22.04(b)) of an-
other attorney employed by the Agency, who has
had no prior connection with the case, including
the performance of any investigative or prosecut-
ing functions.
(b) Ex parte discussion of the proceeding. At no
time after issuance of the initial administrative
order and prior to issuance of the final order shall
the Regional Administrator, Presiding Officer, or
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§24.14
any person who will advise these officials in the
decision on the case, discuss ex parte the merits
of the proceeding with any interested person out-
side the Agency, with any Agency staff member
who performs a prosecutorial or investigative
function in such proceeding or a factually related
proceeding, or with any representative of such per-
son. If, after issuance of the initial order and prior
to issuance of the final order, the Regional Admin-
istrator, Presiding Officer, or any person who will
advise these officials in the decision on the case
receives from or on behalf of any party in an ex
parte communication information which is relevant
to the decision on the case and to which other par-
ties have not had an opportunity to respond, a
summary of such information shall be served on
all other parties, who shall have an opportunity to
reply to same within ten (10) days of service of
the summary.
§24.14 Scheduling the hearing; pre-
hearing submissions by the parties.
(a) The Presiding Officer shall establish an ex-
peditious schedule for:
(1) The submission by respondent of a memo-
randum, with appropriate affidavits and exhibits,
stating and supporting respondent's position on the
facts, law and relief, specifying the bases upon
and manner in which such determinations or relief
provisions, if erroneous, require modification or
withdrawal of the order:
(2) Submission of a response by EPA; and
(3) A public hearing.
Subject to § 24.14(b), a hearing shall be scheduled
within 45 days of the order setting the schedule.
The Presiding Officer shall establish the date,
time, location and agenda for the hearing and shall
transmit this information to the parties along with
the schedule for the hearing.
(b) Postponement of the hearing. The Presiding
Officer, as appropriate, may grant an extension of
time for the filing of any document, other than a
request for a hearing under § 24.05(a), or may
grant an extension of time for the conduct of the
hearing, upon written request of either party, for
good cause shown and after consideration of any
prejudice to other parties.
(c) Respondent's pre-hearing submission. In ac-
cordance with the schedule set by the Presiding
Officer, the respondent shall file a memorandum
stating and supporting respondent's position on the
facts, law and relief. The memorandum must iden-
tify each factual allegation and all issues regarding
the appropriateness of the terms of the relief in the
initial order that respondent contests and for which
respondent requests a hearing. The memorandum
must clearly state respondent's position with re-
spect to each such issue. Respondent must also in-
clude any proposals for modification of the order.
The memorandum shall also present any argu-
ments on the legal conclusions contained in the
order.
(d) Written questions to EPA. The respondent
may file a request with the Presiding Officer for
permission to submit written questions to the EPA
Regional Office issuing the order concerning is-
sues of material fact in the order.
(1) Requests shall be accompanied by the pro-
posed questions. In most instances, no more than
twenty-five (25) questions, including subquestions
and subparts, may be posed. The request and ques-
tions must be submitted to the Presiding Officer at
least twenty-one (21) days before the hearing.
(2) The Presiding Officer may direct EPA to re-
spond to such questions as he designates. In decid-
ing whether or not to direct the Agency to respond
to written questions the Presiding Officer should
consider whether such responses are required for
full disclosure and adequate resolution of the facts.
No questions shall be allowed regarding privileged
internal communications. The Presiding Officer
shall grant, deny, or modify such requests expedi-
tiously. If a request is granted the Presiding Offi-
cer may revise questions and may limit the num-
ber and scope of questions. Questions may be de-
leted or revised in the discretion of the Presiding
Officer for reasons, which may include the fact
that he finds the questions to be irrelevant, redun-
dant, unnecessary, or an undue burden on the
Agency. The Presiding Officer shall transmit the
questions as submitted or as modified to EPA.
EPA shall respond to the questions within fourteen
(14) calendar days of service of the questions by
the Presiding Officer, unless an extension is grant-
ed.
(e) Submission of additional information. The
Presiding Officer shall have the discretion to order
either party to submit additional information (in-
cluding but not limited to post-hearing briefs on
undeveloped factual, technical, or legal matters) in
whatever form he deems appropriate either before,
at, or after the hearing. The Presiding Officer may
issue subpoenas for the attendance and testimony
of persons and the production of relevant papers,
books and documents. Since these hearing proce-
dures provide elsewhere that the parties are not to
engage in direct or cross-examination of witnesses,
the subpoena power is to serve only as an adjunct
to the Presiding Officer's authority to ask ques-
tions and otherwise take steps to clarify factual
matters which are in dispute. Upon request of the
respondent the Presiding Officer may, in his dis-
cretion, allow submittal by the respondent of addi-
tional information in support of its claim, if it is
received by the Clerk and petitioner at least five
(5) business days before the hearing.
(f) Location of hearing. The hearing shall be
held in the city in which the relevant EPA Re-
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§24.15
gional Office is located, unless the Presiding Offi-
cer determines that there is good cause to hold it
in another location.
§24.15 Hearing; oral presentations and
written submissions by the parties.
(a) The Presiding Officer shall conduct the hear-
ing in a fair and impartial manner, take action to
avoid unnecessary delay in the disposition of the
proceedings, and maintain order. The Presiding
Officer shall permit oral statements on behalf of
the respondent and EPA. The Presiding Officer
may address questions to the respondent's or the
EPA's representative(s) during the hearing. Each
party shall ensure that a representative(s) is (are)
present at the hearing, who is (are) capable of re-
sponding to questions and articulating that party's
position on the law and facts at issue. Apart from
questions by the Presiding Officer, no direct exam-
ination or cross-examination shall be allowed.
(b) Upon commencement of the hearing, a rep-
resentative of EPA shall introduce the order and
record supporting issuance of the order, and sum-
marize the basis for the order. The respondent may
respond to the administrative record and offer any
facts, statements, explanations or documents which
bear on any issue for which the hearing has been
requested. Any such presentation by respondent
may include new documents only to the extent
that respondent can demonstrate that, through no
fault of its own, such documents could not have
been submitted before hearing in accordance with
the requirements of §24.14 (c) and (e). The Agen-
cy may then present matters solely in rebuttal to
matters previously presented by the respondent.
The Presiding Officer may allow the respondent to
respond to any such rebuttal submitted. The Pre-
siding Officer may exclude repetitive or irrelevant
matter. The Presiding Officer may upon request
grant petitioner leave to respond to submissions
made by respondent pursuant to this paragraph or
§ 24.14(e).
§24.16 Transcript or recording of
hearing.
(a) The hearing shall be either transcribed steno-
graphically or tape recorded. Upon written request,
such transcript or tape recording shall be made
available for inspection or copying.
(b) The transcript or recording of the hearing
and all written submittals filed with the Clerk by
the parties subsequent to initial issuance of the
order including post-hearing submissions will be-
come part of the administrative record for the pro-
ceeding, for consideration by the Presiding Officer
and Regional Administrator.
§24.17 Presiding Officer's recom-
mendation.
(a) The Presiding Officer will, as soon as prac-
ticable after the conclusion of the hearing, evaluate
the entire administrative record and, on the basis
of the administrative record, prepare and file a rec-
ommended decision with the Regional Adminis-
trator. The recommended decision must address all
material issues of fact or law properly raised by
respondent, and must recommend that the order be
modified, withdrawn or issued without modifica-
tion. The recommended decision must provide an
explanation, with citation to material contained in
the record for any decision to modify a term of
the order, to issue the order without change or to
withdraw the order. The recommended decision
shall be based on the administrative record. If the
Presiding Officer finds that any contested relief
provision in the order is not supported by a pre-
ponderance of the evidence in the record, the Pre-
siding Officer shall recommend that the order be
modified and issued on terms that are supported
by the record, or withdrawn.
(b) At any time within twenty-one (21) days of
service of the recommended decision on the par-
ties, the parties may file comments on the rec-
ommended decision with the Clerk. The Clerk
shall promptly transmit any such comments re-
ceived to the Regional Administrator for his con-
sideration in reaching a final decision.
Subpart D—Post-Hearing
Procedures
§24.18 Final decision.
As soon as practicable after receipt of the rec-
ommended decision, the Regional Administrator
will either sign or modify such recommended de-
cision, and issue it as a final decision. If the Re-
gional Administrator modifies the recommended
decision, he shall insure that the final decision in-
dicates the legal and factual basis for the decision
as modified. The Regional Administrator's deci-
sion shall be based on the administrative record.
§24.19 Final order.
If the Regional Administrator does not adopt
portions of the initial order, or finds that modifica-
tion of the order is necessary, the signatory official
on the initial administrative order shall modify the
order in accordance with the terms of the final de-
cision and file and serve a copy of the final ad-
ministrative order. If the Regional Administrator
finds the initial order appropriate as originally is-
sued, the final decision shall declare the initial ad-
ministrative order to be a final order, effective
upon service of the final decision. If the Regional
Administrator declares that the initial order must
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§24.20
be withdrawn, the signatory official on the initial §24.20 Final agency action.
administrative order will file and serve a with- The fmal decision and the final administrative
drawal of the initial administrative order. This may order we fmal agency actions that are effective on
be done without prejudice. fning and service. These actions are not appealable
to the Administrator.
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PART 25—PUBLIC PARTICIPATION
IN PROGRAMS UNDER THE RE-
SOURCE CONSERVATION AND
RECOVERY ACT, THE SAFE
DRINKING WATER ACT, AND THE
CLEAN WATER ACT
Sec.
25.1 Introduction.
25.2 Scope.
25.3 Policy and objectives.
25.4 Information, notification, and consultation respon-
sibilities.
25.5 Public hearings.
25.6 Public meetings.
25.7 Advisory groups.
25.8 Responsiveness summaries.
25.9 Permit enforcement.
25.10 Rulemakmg.
25.11 Work elements in financial assistance agreements.
25.12 Assuring compliance with public participation re-
quirements.
25.13 Coordination and non-duplication.
25.14 Termination of reporting requirements.
AUTHORITY: Sec. 101(e), Clean Water Act, as amended
(33 U.S.C. 1251 (e)); sec. 7004(b), Resource Conservation
and Recovery Act (42 U.S.C. 6974(b)); sec. 1450(a)(l),
Safe Drinking Water Act, as amended (42 U.S.C. 300j-
9>
SOURCE: 44 FR 10292, Feb. 16, 1979, unless otherwise
noted.
§25.1 Introduction.
This part sets forth minimum requirements and
suggested program elements for public participa-
tion in activities under the Clean Water Act (Pub.
L. 95-217), the Resource Conservation and Re-
covery Act (Pub. L. 94-580), and the Safe Drink-
ing Water Act (Pub. L. 93-523). The applicability
of the requirements of this part is as follows:
(a) Basic requirements and suggested program
elements for public information, public notifica-
tion, and public consultation are set forth in §25.4.
These requirements are intended to foster public
awareness and open processes of government deci-
sionmaking. They are applicable to all covered ac-
tivities and programs described in §25.2(a).
(b) Requirements and suggested program ele-
ments which govern the structure of particular
public participation mechanisms (for example, ad-
visory groups and responsiveness summaries) are
set forth in §§25.5, 25.6, 25.7, and 25.8. This part
does not mandate the use of these public participa-
tion mechanisms. It does, however, set require-
ments which those responsible for implementing
the mechanisms must follow if the mechanisms
are required elsewhere in this chapter.
(c) Requirements which apply to Federal finan-
cial assistance programs (grants and cooperative
agreements) under the three acts are set forth in
§§25.10 and 25.12(a).
(d) Requirements for public involvement which
apply to specific activities are set forth in §25.9
(Permit enforcement), §25.10 (Rulemaking), and
§25.12 (Assuring compliance with requirements).
§25.2 Scope.
(a) The activities under the three Acts which are
covered by this part are:
(1) EPA rulemaking, except non-policy rule-
making (for example publication of funding allot-
ments under statutory formulas); and State rule-
making under the Clean Water Act and Resource
Conservation and Recovery Act;
(2) EPA issuance and modification of permits,
and enforcement of permits as delineated by
§25.9;
(3) Development by EPA of major informa-
tional materials, such as citizen guides or hand-
books, which are expected to be used over several
years and which are intended to be widely distrib-
uted to the public;
(4) Development by EPA of strategy and policy
guidance memoranda when a Deputy Assistant
Administrator determines it to be appropriate;
(5) Development and implementation of plans,
programs, standards, construction, and other activi-
ties supported with EPA financial assistance
(grants and cooperative agreements) to State, inter-
state, regional and local agencies (herein after re-
ferred to as "State, interstate, and substate agen-
cies");
(6) The process by which EPA makes a deter-
mination regarding approval of State administra-
tion of the Construction Grants program in lieu of
Federal administration; and the administration of
the Construction Grants Program by the State after
EPA approval;
(7) The process by which EPA makes a deter-
mination regarding approval of State administra-
tion of the following programs in lieu of Federal
administration: The State Hazardous Waste Pro-
gram; the NPDES Permit Program; the Dredge
and Fill Permit Program; and the Underground In-
jection Control Program;
(8) Other activities which the Assistant Admin-
istrator for Water and Waste Management, the As-
sistant Administrator for Enforcement, or any EPA
Regional Administrator deems appropriate in view
of the Agency's responsibility to involve the pub-
lic in significant decisions.
(b) Activities which are not covered by this
part, except as otherwise provided under (a)(8) or
(c) of this section, are activities under Parts 33
(Subagreements), 39 (Loan Guarantees for Con-
struction of Treatment Works), 40 (Research and
Development Grants), 45 (Training Grants and
1
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§25.3
Manpower Forecasting) and 46 (Fellowships) of
this chapter.
(c) Some programs covered by these regulations
contain further provisions concerning public par-
ticipation. These are found elsewhere in this chap-
ter in provisions which apply to the program of in-
terest. Regulations which govern the use and re-
lease of public information are set forth in part 2
of this chapter.
(d) Specific provisions of court orders which
conflict with requirements of this part, such as
court-established timetables, shall take precedence
over the provisions in this part.
(e) Where the State undertakes functions in the
construction grants program, the State shall be re-
sponsible for meeting these requirements for pub-
lic participation, and any applicable public partici-
pation requirements found elsewhere in this chap-
ter, to the same extent as EPA.
(f) Where the State undertakes functions in
those programs specifically cited in §25.2(a)(7),
the State shall be responsible for meeting the re-
quirements for public participation included in the
applicable regulations governing those State pro-
grams. The requirements for public participation in
State Hazardous Waste Programs, Dredge and Fill
Permit programs, Underground Injection Control
programs and NPDES permit programs are found
in part 123 of this chapter. These regulations em-
body the substantive requirements of this part.
(g) These regulations apply to the activities of
all agencies receiving EPA financial assistance
which is awarded after [the effective date of final
regulations], and to all other covered activities of
EPA, State, interstate, and substate agencies which
occur after that date. These regulations will apply
to ongoing grants or other covered activities upon
any significant change in the activity (for example,
upon a significant proposed increase in project
scope of a construction grant). Parts 105 (Public
Participation in Water Pollution Control) and 249
(Public Participation in Solid Waste Management)
will no longer appear in the Code of Federal Reg-
ulations; however, they will remain applicable, in
uncodified form, to grants awarded prior to the ef-
fective date of this part and to all other ongoing
activities.
§ 25.3 Policy and objectives.
(a) EPA, State, interstate, and substate agencies
carrying out activities described in §25.2(a) shall
provide for, encourage, and assist the participation
of the public. The term, "the public" in the
broadest sense means the people as a whole, the
general populace. There are a number of identifi-
able "segments of the public" which may have a
particular interest in a given program or decision.
Interested and affected segments of the public may
be affected directly by a decision, either bene-
ficially or adversely; they may be affected indi-
rectly; or they may have some other concern about
the decision. In addition to private citizens, the
public may include, among others, representatives
of consumer, environmental, and minority associa-
tions; trade, industrial, agricultural, and labor orga-
nizations; public health, scientific, and professional
societies; civic associations; public officials; and
governmental and educational associations.
(b) Public participation is that part of the deci-
sion-making process through which responsible of-
ficials become aware of public attitudes by provid-
ing ample opportunity for interested and affected
parties to communicate their views. Public partici-
pation includes providing access to the decision-
making process, seeking input from and conduct-
ing dialogue with the public, assimilating public
viewpoints and preferences, and demonstrating that
those viewpoints and preferences have been con-
sidered by the decision-making official. Disagree-
ment on significant issues is to be expected among
government agencies and the diverse groups inter-
ested in and affected by public policy decisions.
Public agencies should encourage full presentation
of issues at an early stage so that they can be re-
solved and timely decisions can be made. In the
course of this process, responsible officials should
make special efforts to encourage and assist par-
ticipation by citizens representing themselves and
by others whose resources and access to decision-
making may be relatively limited.
(c) The following are the objectives of EPA,
State, interstate, and substate agencies in carrying
out activities covered by this part:
(1) To assure that the public has the opportunity
to understand official programs and proposed ac-
tions, and that the government fully considers the
public's concerns;
(2) To assure that the government does not
make any significant decision on any activity cov-
ered by this part without consulting interested and
affected segments of the public;
(3) To assure that government action is as re-
sponsive as possible to public concerns;
(4) To encourage public involvement in imple-
menting environmental laws;
(5) To keep the public informed about signifi-
cant issues and proposed project or program
changes as they arise;
(6) To foster a spirit of openness and mutual
trust among EPA, States, substate agencies and the
public; and
(7) To use all feasible means to create opportu-
nities for public participation, and to stimulate and
support participation.
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§25.4
§25.4 Information, notification, and
consultation responsibilities.
(a) General. EPA, State, interstate, and substate
agencies shall conduct a continuing program for
public information and participation in the devel-
opment and implementation of activities covered
by this part. This program shall meet the following
requirements:
(b) Information and assistance requirements. (1)
Providing information to the public is a necessary
prerequisite to meaningful, active public involve-
ment. Agencies shall design informational activi-
ties to encourage and facilitate the public's partici-
pation in all significant decisions covered by
§25.2(a), particularly where alternative courses of
action are proposed.
(2) Each agency shall provide the public with
continuing policy, program, and technical informa-
tion and assistance beginning at the earliest prac-
ticable time. Informational materials shall high-
light significant issues that will be the subject of
decision-making. Whenever possible, consistent
with applicable statutory requirements, the social,
economic, and environmental consequences of pro-
posed decisions shall be clearly stated in such ma-
terial. Each agency shall identify segments of the
public likely to be affected by agency decisions
and should consider targeting informational mate-
rials toward them (in addition to the materials di-
rected toward the general public). Lengthy docu-
ments and complex technical materials that relate
to significant decisions should be summarized for
public and media uses. Fact sheets, news releases,
newsletters, and other similar publications may be
used to provide notice that materials are available
and to facilitate public understanding of more
complex documents, but shall not be a substitute
for public access to the full documents.
(3) Each agency shall provide one or more
central collections of reports, studies, plans, and
other documents relating to controversial issues or
significant decisions in a convenient location or
locations, for example, in public libraries. Exam-
ples of such documents are catalogs of documents
available from the agency, grant applications, fact
sheets on permits and permit applications, permits,
effluent discharge information, and compliance
schedule reports. Copying facilities at reasonable
cost should be available at the depositories.
(4) Whenever possible, agencies shall provide
copies of documents of interest to the public free
of charge. Charges for copies should not exceed
prevailing commercial copying costs. EPA require-
ments governing charges for information and doc-
uments provided to the public in response to re-
quests made under the Freedom of Information
Act are set forth in part 2 of this chapter. Consist-
ent with the objectives of §25.3(b), agencies may
reserve their supply of free copies for private citi-
zens and others whose resources are limited.
(5) Each agency shall develop and maintain a
list of persons and organizations who have ex-
pressed an interest in or may, by the nature of
their purposes, activities or members, be affected
by or have an interest in any covered activity.
Generally, this list will be most useful where sub-
divided by area of interest or geographic area.
Whenever possible, the list should include rep-
resentatives of the several categories of interests
listed under §25.3(a). Those on the list, or rel-
evant portions if the list is subdivided, shall re-
ceive timely and periodic notification of the avail-
ability of materials under §25.4(b)(2).
(c) Public notification. Each agency shall notify
interested and affected parties, including appro-
priate portions of the list required by paragraph
(b)(5) of this section, and the media in advance of
times at which major decisions not covered by no-
tice requirements for public meetings or public
hearings are being considered. Generally, notices
should include the timetable in which a decision
will be reached, the issues under consideration,
any alternative courses of action or tentative deter-
minations which the agency has made, a brief list-
ing of the applicable laws or regulations, the loca-
tion where relevant documents may be reviewed
or obtained, identification of any associated public
participation opportunities such as workshops or
meetings, the name of an individual to contact for
additional information, and any other appropriate
information. All advance notifications under this
paragraph must be provided far enough in advance
of agency action to permit time for public re-
sponse; generally this should not be less than 30
days.
(d) Public consultation. For the purposes of this
part, "public consultation" means an exchange of
views between governmental agencies and inter-
ested or affected persons and organizations in
order to meet the objectives set forth in §25.3.
Requirements for three common forms of public
consultation (public hearings, public meetings, and
advisory groups) are set forth in §§25.5, 25.6, and
25.7. Other less formal consultation mechanisms
may include but are not limited to review groups,
ad hoc committees, task forces, workshops, semi-
nars and informal personal communications with
individuals and groups. Public consultation must
be preceded by timely distribution of information
and must occur sufficiently in advance of deci-
sion-making to allow the agency to assimilate pub-
lic views into agency action. EPA, State, inter-
state, and substate agencies shall provide for early
and continuing public consultation in any signifi-
cant action covered by this part. Merely conferring
with the public after an agency decision does not
meet this requirement. In addition to holding hear-
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§25.5
ings and meetings as specifically required in this
chapter, a hearing or meeting shall be held if EPA,
the State, interstate, or substate agency determines
that there is significant public interest or that a
hearing or meeting would be useful.
(e) Public information concerning legal pro-
ceedings. EPA, State, interstate, and substate agen-
cies shall provide full and open information on
legal proceedings to the extent not inconsistent
with court requirements, and where such disclo-
sure would not prejudice the conduct of the litiga-
tion. EPA actions with regard to affording oppor-
tunities for public comment before the Department
of Justice consents to a proposed judgment in an
action to enjoin discharges of pollutants into the
environment shall be consistent with the Statement
of Policy issued by the Department of Justice (see
Title 28, CFR, Chapter 1, § 50.7).
§25.5 Public hearings.
(a) Applicability. Any non-adjudicatory public
hearing, whether mandatory or discretionary, under
the three Acts shall meet the following minimum
requirements. These requirements are subordinate
to any more stringent requirements found else-
where in this chapter or otherwise imposed by
EPA, State, interstate, or substate agencies. Proce-
dures developed for adjudicatory hearings required
by this chapter shall be consistent with the public
participation objectives of this part, to the extent
practicable.
(b) Notice. A notice of each hearing shall be
well publicized, and shall also be mailed to the ap-
propriate portions of the list of interested and af-
fected parties required by §25.4(b)(5). Except as
otherwise specifically provided elsewhere in this
chapter, these actions must occur at least 45 days
prior to the date of the hearing. However, where
EPA determines that there are no substantial docu-
ments which must be reviewed for effective hear-
ing participation and that there are no complex or
controversial matters to be addressed by the hear-
ing, the notice requirement may be reduced to no
less than 30 days. EPA may further reduce or
waive the hearing notice requirement in emer-
gency situations where EPA determines that there
is an imminent danger to public health. To the ex-
tent not duplicative, the agency holding the hear-
ing shall also provide informal notice to all inter-
ested persons or organizations that request it. The
notice shall identify the matters to be discussed at
the hearing and shall include or be accompanied
by a discussion of the agency's tentative deter-
mination on major issues (if any), information on
the availability of a bibliography of relevant mate-
rials (if deemed appropriate), and procedures for
obtaining further information. Reports, documents
and data relevant to the discussion at the public
hearing shall be available to the public at least 30
days before the hearing. Earlier availability of ma-
terials relevant to the hearing will further assist
public participation and is encouraged where pos-
sible.
(c) Locations and time. Hearings must be held
at times and places which, to the maximum extent
feasible, facilitate attendance by the public. Acces-
sibility of public transportation, and use of evening
and weekend hearings, should be considered. In
the case of actions with Statewide interest, holding
more than one hearing should be considered.
(d) Scheduling presentations. The agency hold-
ing the hearing shall schedule witnesses in ad-
vance, when necessary, to ensure maximum par-
ticipation and allotment of adequate time for all
speakers. However, the agency shall reserve some
time for unscheduled testimony and may consider
reserving blocks of time for major categories of
witnesses.
(e) Conduct of hearing. The agency holding the
hearing shall inform the audience of the issues in-
volved in the decision to be made, the consider-
ations the agency will take into account, the agen-
cy's tentative determinations (if any), and the in-
formation which is particularly solicited from the
public. The agency should consider allowing a
question and answer period. Procedures shall not
unduly inhibit free expression of views (for exam-
ple, by onerous written statement requirements or
qualification of witnesses beyond minimum identi-
fication).
(f) Record. The agency holding the hearing shall
prepare a transcript, recording or other complete
record of public hearing proceedings and make it
available at no more than cost to anyone who re-
quests it. A copy of the record shall be available
for public review.
§25.6 Public meetings.
Public meetings are any assemblies or gathering,
(such as conferences, informational sessions, semi-
nars, workshops, or other activities) which the re-
sponsible agency intends to be open to anyone
wishing to attend. Public meetings are less formal
than public hearings. They do not require formal
presentations, scheduling of presentations and a
record of proceedings. The requirements of §25.5
(b) and (c) are applicable to public meetings, ex-
cept that the agency holding the meeting may re-
duce the notice to not less than 30 days if there
is good reason that longer notice cannot be pro-
vided.
§25.7 Advisory groups.
(a) Applicability. The requirements of this sec-
tion on advisory groups shall be met whenever
provisions of this chapter require use of an advi-
sory group by State, interstate, or substate agen-
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§25.7
cies involved in activities supported by EPA finan-
cial assistance under any of the three Acts.
(b) Role. Primary responsibility for decision-
making in environmental programs is vested by
law in the elected and appointed officials who
serve on public bodies and agencies at various lev-
els of government. However, all segments of the
public must have the opportunity to participate in
environmental quality planning. Accordingly,
where EPA identifies a need for continued atten-
tion of an informed core group of citizens in rela-
tion to activities conducted with EPA financial as-
sistance, program regulations elsewhere in this
chapter will require an advisory group to be ap-
pointed by the financially assisted agency. Such
advisory groups will not be the sole mechanism
for public participation, but will complement other
mechanisms. They are intended to assist elected or
appointed officials with final decision-making re-
sponsibility by making recommendations to such
officials on important issues. In addition, advisory
groups should foster a constructive interchange
among the various interests present on the group
and enhance the prospect of community accept-
ance of agency action.
(c) Membership. (1) The agency receiving finan-
cial assistance shall assure that the advisory group
reflects a balance of interests in the affected area.
In order to meet this requirement, the assisted
agency shall take positive action, in accordance
with paragraph (c)(3) of this section, to establish
an advisory group which consists of substantially
equivalent proportions of the following four
groups:
(i) Private citizens. No person may be included
in this portion of the advisory group who is likely
to incur a financial gain or loss greater than that
of an average homeowner, taxpayer or consumer
as a result of any action likely to be taken by the
assisted agency.
(ii) Representatives of public interest groups. A
"public interest group" is an organization which
reflects a general civic, social, recreational, envi-
ronmental or public health perspective in the area
and which does not directly reflect the economic
interests of its membership.
(iii) Public officials.
(iv) Citizens or representatives of organizations
with substantial economic interests in the plan or
project.
(2) Generally, where the activity has a particular
geographic focus, the advisory group shall be
made up of persons who are residents of that geo-
graphic area.
(3) In order to meet the advisory group mem-
bership requirements of paragraph (c)(l) of this
section, the assisted agency shall:
(i) Identify public interest groups, economic in-
terests, and public officials who are interested in
or affected by the assisted activity.
(ii) Make active efforts to inform citizens in the
affected area, and the persons or groups identified
under paragraph (c)(3)(i) of this section, of this
opportunity for participation on the advisory
group. This may include such actions as placing
notices or announcements in the newspapers or
other media, mailing written notices to interested
parties, contacting organizations or individuals di-
rectly, requesting organizations to notify their
members through meetings, newsletters, or other
means.
(iii) Where the membership composition set
forth in paragraph (c)(l) of this section is not met
after the above actions, the assisted agency shall
identify the causative problems and make addi-
tional efforts to overcome such problems. For ex-
ample, the agency should make personal contact
with prospective participants to invite their partici-
pation.
(iv) Where problems in meeting the membership
composition arise, the agency should request ad-
vice and assistance from EPA.
(d) The assisted agency shall record the names
and mailing addresses of each member of the ad-
visory group, with the attributes of each in relation
to the membership requirements set forth in para-
graph (c)(l) of this section, provide a copy to
EPA, and make the list available to the public. In
the event that the membership requirements set
forth in paragraph (c)(l) of this section are not
met, the assisted agency shall append to the list a
description of its efforts to comply with those re-
quirements and an explanation of the problems
which prevented compliance. EPA shall review the
agency's efforts to comply and approve the advi-
sory group composition or, if the agency's efforts
were inadequate, require additional actions to
achieve the required membership composition.
(e) Responsibilities of the assisted agency. (1)
The assisted agency shall designate a staff contact
who will be responsible for day-to-day coordina-
tion among the advisory group, the agency, and
any agency contractors or consultants. The finan-
cial assistance agreement shall include a budget
item for this staff contact. Where substantial por-
tions of the assisted agency's responsibilities will
be met under contract, the agency shall require a
similar designation, and budget specification, of its
contractor. In the latter event, the assisted agency
does not have to designate a separate staff contact
on its own staff, if the Regional Administrator de-
termines that the contractor's designation will re-
sult in adequate coordination. The staff contact
shall be located in the project area.
(2) The assisted agency has such responsibilities
as providing the advisory group with information,
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§25.8
identifying issues for the advisory group's consid-
eration, consulting with the advisory group
throughout the project, requesting the advisory
group's recommendations prior to major decisions,
transmitting advisory group recommendations to
decision-making officials, and making written re-
sponses to any formal recommendation by the ad-
visory group. The agency shall make any such
written responses available to the public. To the
maximum extent feasible, the assisted agency shall
involve the advisory group in the development of
the public participation program.
(3) The assisted agency shall identify profes-
sional and clerical staff time which the advisory
group may depend upon for assistance, and pro-
vide the advisory group with an operating budget
which may be used for technical assistance and
other purposes agreed upon between the advisory
group and the agency.
(4) The assisted agency shall establish a system
to make costs of reasonable out-of-pocket ex-
penses of advisory group participation available to
group members. Time away from work need not
be reimbursed; however, assisted agencies are en-
couraged to schedule meetings at times and places
which will not require members to leave their jobs
to attend.
(f) Advisory group responsibilities and duties.
The advisory group may select its own chair-
person, adopt its own rules of order, and schedule
and conduct its own meetings. Advisory group
meetings shall be announced well in advance and
shall be open to the public. At all meetings, the
advisory group shall provide opportunity for pub-
lic comment. Any minutes of advisory group
meetings and recommendations to the assisted
agency shall be available to the public. The advi-
sory group should monitor the progress of the
project and become familiar with issues relevant to
project development. In the event the assisted
agency and the advisory group agree that the advi-
sory group will assume public participation re-
sponsibilities, the group should undertake those re-
sponsibilities promptly. The advisory group should
make written recommendations directly to the as-
sisted agency and to responsible decision-making
officials on major decisions (including approval of
the public participation program) and respond to
any requests from the agency or decision-making
officials for recommendations. The advisory group
should remain aware of community attitudes and
responses to issues as they arise. As part of this
effort, the advisory group may, within the limita-
tions of available resources, conduct public partici-
pation activities in conjunction with the assisted
agency; solicit outside advice; and establish, in
conjunction with the assisted agency, subcommit-
tees, ad hoc groups, or task forces to investigate
and develop recommendations on particular issues
as they arise. The advisory group should undertake
its responsibilities fully and promptly in accord-
ance with the policies and requirements of this
part. Nothing shall preclude the right of the advi-
sory group from requesting EPA to perform an
evaluation of the assisted agency's compliance
with the requirements of this part.
(g) Training and assistance. EPA will promptly
provide appropriate written guidance and project
information to the newly formed advisory group
and may provide advice and assistance to the
group throughout the life of the project. EPA will
develop and, in conjunction with the State or as-
sisted agency, carry out a program to provide a
training session for the advisory group, and appro-
priate assisted agency representatives, promptly
after the advisory group is formed. The assisted
agency shall provide additional needed information
or assistance to the advisory group.
§ 25.8 Responsiveness summaries.
Each agency which conducts any activities re-
quired under this part shall prepare a Responsive-
ness Summary at specific decision points as speci-
fied in program regulations or in the approved
public participation work plan. Responsiveness
Summaries are also required for rulemaking activi-
ties under §25.10. Each Responsiveness Summary
shall identify the public participation activity con-
ducted; describe the matters on which the public
was consulted; summarize the public's views, sig-
nificant comments, criticisms and suggestions; and
set forth the agency's specific responses in terms
of modifications of the proposed action or an ex-
planation for rejection of proposals made by the
public. Responsiveness Summaries prepared by
agencies receiving EPA financial assistance shall
also include evaluations by the agency of the ef-
fectiveness of the public participation program.
Assisted agencies shall request such evaluations
from any advisory group and provide an oppor-
tunity for other participating members of the pub-
lic to contribute to the evaluation. (In the case of
programs with multiple responsiveness summary
requirements, these analyses need only be prepared
and submitted with the final summary required.)
Responsiveness summaries shall be forwarded to
the appropriate decision-making official and shall
be made available to the public. Responsiveness
Summaries shall be used as part of evaluations re-
quired under this part or elsewhere in this chapter.
§ 25.9 Permit enforcement.
Each agency administering a permit program
shall develop internal procedures for receiving evi-
dence submitted by citizens about permit viola-
tions and ensuring that it is properly considered.
Public effort in reporting violations shall be en-
couraged, and the agency shall make available in-
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formation on reporting procedures. The agency
shall investigate alleged violations promptly.
§25.10 Rulemaking.
(a) EPA shall invite and consider written com-
ments on proposed and interim regulations from
any interested or affected persons and organiza-
tions. All such comments shall be part of the pub-
lic record, and a copy of each comment shall be
available for public inspection. EPA will maintain
a docket of comments received and any Agency
responses. Notices of proposed and interim rule-
making, as well as final rules and regulations,
shall be distributed in accordance with §25.4(c) to
interested or affected persons promptly after publi-
cation. Each notice shall include information as to
the availability of the full texts of rules and regu-
lations (where these are not set forth in the notice
itself) and places where copying facilities are
available at reasonable cost to the public. Under
Executive Order 12044 (March 23, 1978), further
EPA guidance will be issued concerning public
participation in EPA rulemaking. A Responsive-
ness Summary shall be published as part of the
preamble to interim and final regulations. In addi-
tion to providing opportunity for written comments
on proposed and interim regulations, EPA may
choose to hold a public hearing.
(b) State rulemaking specified in §25.2(a)(l)
shall be in accord with the requirements of para-
graph (a) of this section or with the State's admin-
istrative procedures act, if one exists. However, in
the event of conflict between a provision of para-
graph (a) of this section and a provision of a
State's administrative procedures act, the State's
law shall apply.
§25.11 Work elements in financial as-
sistance agreements.
(a) This section is applicable to activities under
§25.2(a)(5) except as otherwise provided in parts
30 or 35.
(b) Each applicant for EPA financial assistance
shall set forth in the application a public participa-
tion work plan or work element which reflects
how public participation will be provided for, en-
couraged, and assisted in accordance with this
part. This work plan or element shall cover the
project period. At a minimum, the work plan or
element shall include:
(1) Staff contacts and budget resources to be de-
voted to public participation by category;
(2) A proposed schedule for public participation
activities to impact major decisions, including con-
sultation points where responsiveness summaries
will be prepared;
(3) An identification of consultation and infor-
mation mechanisms to be used;
§25.12
(4) The segments of the public targeted for in-
volvement.
(c) All reasonable costs of public participation
incurred by assisted agencies which are identified
in an approved public participation work plan or
element, or which are otherwise approved by EPA,
shall be eligible for financial assistance.
(d) The work plan or element may be revised
as necessary throughout the project period with
approval of the Regional Administrator.
§25.12 Assuring compliance with pub-
lic participation requirements.
(a) Financial assistance programs—(1) Applica-
tions. EPA shall review the public participation
work plan (or, if no work plan is required by this
chapter for the particular financial assistance
agreement, the public participation element) in-
cluded in the application to determine consistency
with all policies and requirements of this part. No
financial assistance shall be awarded unless EPA
is satisfied that the public participation policies
and requirements of this part and, any applicable
public participation requirements found elsewhere
in this chapter, will be met.
(2) Compliance—(i) Evaluation. EPA shall
evaluate compliance with public participation re-
quirements using the work plan, responsiveness
summary, and other available information. EPA
will judge the adequacy of the public participation
effort in relation to the objectives and require-
ments of §25.3 and §25.4 and other applicable re-
quirements. In conducting this evaluation, EPA
may request additional information from the as-
sisted agency, including records of hearings and
meetings, and may invite public comment on the
agency's performance. The evaluation will be un-
dertaken as part of any mid-project review re-
quired in various programs under this chapter;
where no such review is required the review shall
be conducted at an approximate mid-point in con-
tinuing EPA oversight activity. EPA may, how-
ever, undertake such evaluation at any point in the
project period, and will do so whenever it believes
that an assisted agency may have failed to meet
public participation requirements.
(ii) Remedial actions. Whenever EPA deter-
mines that an assisted agency has not fully met
public participation requirements, EPA shall take
actions which it deems appropriate to mitigate the
adverse effects of the failure and assure that the
failure is not repeated. For ongoing projects, that
action shall include, at a minimum, imposing more
stringent requirements on the assisted agency for
the next budget period or other period of the
project (including such actions as more specific
output requirements and milestone schedules for
output achievement; interim EPA review of public
participation activities and materials prepared by
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§25.13
the agency, and phased release of funds based on
compliance with milestone schedules.) EPA may
terminate or suspend part or all financial assist-
ance for non-compliance with public participation
requirements, and may take any further actions
that it determines to be appropriate in accordance
with parts 30 and 35 of this chapter (see, in par-
ticular, §§30.340, Noncompliance and 30.615-3,
Withholding of Payments, and subpart H of part
30, Modification, Suspension, and Termination).
(b) State programs approved in lieu of Federal
programs. State compliance with applicable public
participation requirements in programs specified in
§25.2(a) (6) and (7) and administered by approved
States shall be monitored by EPA during the an-
nual review of the State's program, and during any
financial or program audit or review of these pro-
grams. EPA may withdraw an approved program
from a State for failure to comply with applicable
public participation requirements.
(c) Other covered programs. Assuring compli-
ance with these public participation requirements
for programs not covered by paragraphs (a) and
(b) of this section is the responsibility of the Ad-
ministrator of EPA. Citizens with information con-
cerning alleged failures to comply with the public
participation requirements should notify the Ad-
ministrator. The Administrator will assure that in-
stances of alleged non-compliance are promptly
investigated and that corrective action is taken
where necessary.
§25.13 Coordination and non-duplica-
tion.
The public participation activities and materials
that are required under this part should be coordi-
nated or combined with those of closely related
programs or activities wherever this will enhance
the economy, the effectiveness, or the timeliness
of the effort; enhance the clarity of the issue; and
not be detrimental to participation by the widest
possible public. Hearings and meetings on the
same matter may be held jointly by more than one
agency where this does not conflict with the pol-
icy of this paragraph. Special efforts shall be made
to coordinate public participation procedures under
this part and applicable regulations elsewhere in
this chapter with environmental assessment and
analysis procedures under 40 CFR part 6. EPA en-
courages interstate agencies in particular to de-
velop combined proceedings for the States con-
cerned.
§25.14 Termination of reporting re-
quirements.
All reporting requirements specifically estab-
lished by this part will terminate on (5 years from
date of publication) unless EPA acts to extend the
requirements beyond that date.
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PART 26—PROTECTION OF HUMAN
SUBJECTS
Sec.
26.101 To what does this policy apply?
26.102 Definitions.
26.103 Assuring compliance with this policy—research
conducted or supported by any Federal Department
or Agency.
26.104 [Reserved]
26.105 [Reserved]
26.106 [Reserved]
26.107 IRB Membership.
26.108 IRB functions and operations.
26.109 IRB review of research.
26.110 Expedited review procedures for certain kinds of
research involving no more than minimal risk, and
for minor changes in approved research.
26.111 Criteria for IRB approval of research.
26.112 Review by institution.
26.113 Suspension or termination of IRB approval of re-
search.
26.114 Cooperative research.
26.115 IRB records.
26.116 General requirements for informed consent.
26.117 Documentation of informed consent.
26.118 Applications and proposals lacking definite plans
for involvement of human subjects.
26.119 Research undertaken without the intention of in-
volving human subjects.
26.120 Evaluation and disposition of applications and
proposals for research to be conducted or supported
by a Federal Department or Agency.
26.121 [Reserved]
26.122 Use of Federal funds.
26.123 Early termination of research support: Evaluation
of applications and proposals.
26.124 Conditions.
AUTHORITY: 5 U.S.C. 301; 42 U.S.C. 300v-l(b).
SOURCE: 56 FR 28012, 28022, June 18, 1991, unless
otherwise noted.
§26.101 To what does this policy
apply?
(a) Except as provided in paragraph (b) of this
section, this policy applies to all research involv-
ing human subjects conducted, supported or other-
wise subject to regulation by any federal depart-
ment or agency which takes appropriate adminis-
trative action to make the policy applicable to
such research. This includes research conducted by
federal civilian employees or military personnel,
except that each department or agency head may
adopt such procedural modifications as may be ap-
propriate from an administrative standpoint. It also
includes research conducted, supported, or other-
wise subject to regulation by the federal govern-
ment outside the United States.
(1) Research that is conducted or supported by
a federal department or agency, whether or not it
is regulated as defined in §26.102(e), must com-
ply with all sections of this policy.
(2) Research that is neither conducted nor sup-
ported by a federal department or agency but is
subject to regulation as defined in §26.102(e)
must be reviewed and approved, in compliance
with §26.101, §26.102, and §26.107 through
§26.117 of this policy, by an institutional review
board (IRB) that operates in accordance with the
pertinent requirements of this policy.
(b) Unless otherwise required by department or
agency heads, research activities in which the only
involvement of human subjects will be in one or
more of the following categories are exempt from
this policy:
(1) Research conducted in established or com-
monly accepted educational settings, involving
normal educational practices, such as (i) research
on regular and special education instructional strat-
egies, or (ii) research on the effectiveness of or the
comparison among instructional techniques, curric-
ula, or classroom management methods.
(2) Research involving the use of educational
tests (cognitive, diagnostic, aptitude, achievement),
survey procedures, interview procedures or obser-
vation of public behavior, unless:
(i) Information obtained is recorded in such a
manner that human subjects can be identified, di-
rectly or through identifiers linked to the subjects;
and (ii) any disclosure of the human subjects' re-
sponses outside the research could reasonably
place the subjects at risk of criminal or civil liabil-
ity or be damaging to the subjects' financial stand-
ing, employability, or reputation.
(3) Research involving the use of educational
tests (cognitive, diagnostic, aptitude, achievement),
survey procedures, interview procedures, or obser-
vation of public behavior that is not exempt under
paragraph (b)(2) of this section, if:
(i) The human subjects are elected or appointed
public officials or candidates for public office; or
(ii) federal statute(s) require(s) without exception
that the confidentiality of the personally identifi-
able information will be maintained throughout the
research and thereafter.
(4) Research, involving the collection or study
of existing data, documents, records, pathological
specimens, or diagnostic specimens, if these
sources are publicly available or if the information
is recorded by the investigator in such a manner
that subjects cannot be identified, directly or
through identifiers linked to the subjects.
(5) Research and demonstration projects which
are conducted by or subject to the approval of de-
partment or agency heads, and which are designed
to study, evaluate, or otherwise examine:
(i) Public benefit or service programs; (ii) pro-
cedures for obtaining benefits or services under
those programs; (iii) possible changes in or alter-
natives to those programs or procedures; or (iv)
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§26.102
possible changes in methods or levels of payment
for benefits or services under those programs.
(6) Taste and food quality evaluation and
consumer acceptance studies, (i) if wholesome
foods without additives are consumed or (ii) if a
food is consumed that contains a food ingredient
at or below the level and for a use found to be
safe, or agricultural chemical or environmental
contaminant at or below the level found to be safe,
by the Food and Drug Administration or approved
by the Environmental Protection Agency or the
Food Safety and Inspection Service of the U.S.
Department of Agriculture.
(c) Department or agency heads retain final
judgment as to whether a particular activity is cov-
ered by this policy.
(d) Department or agency heads may require
that specific research activities or classes of re-
search activities conducted, supported, or other-
wise subject to regulation by the department or
agency but not otherwise covered by this policy,
comply with some or all of the requirements of
this policy.
(e) Compliance with this policy requires compli-
ance with pertinent federal laws or regulations
which provide additional protections for human
subjects.
(f) This policy does not affect any state or local
laws or regulations which may otherwise be appli-
cable and which provide additional protections for
human subjects.
(g) This policy does not affect any foreign laws
or regulations which may otherwise be applicable
and which provide additional protections to human
subjects of research.
(h) When research covered by this policy takes
place in foreign countries, procedures normally
followed in the foreign countries to protect human
subjects may differ from those set forth in this
policy. [An example is a foreign institution which
complies with guidelines consistent with the
World Medical Assembly Declaration (Declaration
of Helsinki amended 1989) issued either by sov-
ereign states or by an organization whose function
for the protection of human research subjects is
internationally recognized.] In these circumstances,
if a department or agency head determines that the
procedures prescribed by the institution afford pro-
tections that are at least equivalent to those pro-
vided in this policy, the department or agency
head may approve the substitution of the foreign
procedures in lieu of the procedural requirements
provided in this policy. Except when otherwise re-
quired by statute, Executive Order, or the depart-
ment or agency head, notices of these actions as
they occur will be published in the FEDERAL REG-
ISTER or will be otherwise published as provided
in department or agency procedures.
(i) Unless otherwise required by law, depart-
ment or agency heads may waive the applicability
of some or all of the provisions of this policy to
specific research activities or classes of research
activities otherwise covered by this policy. Except
when otherwise required by statute or Executive
Order, the department or agency head shall for-
ward advance notices of these actions to the Of-
fice for Protection from Research Risks, Depart-
ment of Health and Human Services (HHS), and
shall also publish them in the FEDERAL REGISTER
or in such other manner as provided in department
or agency procedures.1
[56 FR 28012, 28022, June 18, 1991, 56 FR 29756, June
28, 1991]
§26.102 Definitions.
(a) Department or agency head means the head
of any federal department or agency and any other
officer or employee of any department or agency
to whom authority has been delegated.
(b) Institution means any public or private entity
or agency (including federal, state, and other agen-
cies).
(c) Legally authorized representative means an
individual or judicial or other body authorized
under applicable law to consent on behalf of a
prospective subject to the subject's participation in
the procedure(s) involved in the research.
(d) Research means a systematic investigation,
including research development, testing and eval-
uation, designed to develop or contribute to gener-
alizable knowledge. Activities which meet this
definition constitute research for purposes of this
policy, whether or not they are conducted or sup-
ported under a program which is considered re-
search for other purposes. For example, some
demonstration and service programs may include
research activities.
(e) Research subject to regulation, and similar
terms are intended to encompass those research
activities for which a federal department or agency
has specific responsibility for regulating as a re-
search activity, (for example, Investigational New
Drug requirements administered by the Food and
1 Institutions with HHS-approved assurances on file
will abide by provisions of title 45 CFR part 46 subparts
A-D. Some of the other Departments and Agencies have
incorporated all provisions of title 45 CFR part 46 into
their policies and procedures as well. However, the ex-
emptions at 45 CFR 46.101(b) do not apply to research
involving prisoners, fetuses, pregnant women, or human
in vitro fertilization, subparts B and C. The exemption at
45 CFR 46.101(b)(2), for research involving survey or
interview procedures or observation of public behavior,
does not apply to research with children, subpart D, ex-
cept for research involving observations of public behav-
ior when the investigator(s) do not participate in the ac-
tivities being observed.
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§26.103
Drug Administration). It does not include research
activities which are incidentally regulated by a
federal department or agency solely as part of the
department's or agency's broader responsibility to
regulate certain types of activities whether re-
search or non-research in nature (for example,
Wage and Hour requirements administered by the
Department of Labor).
(f) Human subject means a living individual
about whom an investigator (whether professional
or student) conducting research obtains
(1) Data through intervention or interaction with
the individual, or
(2) Identifiable private information.
Intervention includes both physical procedures by
which data are gathered (for example,
venipuncture) and manipulations of the subject or
the subject's environment that are performed for
research purposes. Interaction includes commu-
nication or interpersonal contact between inves-
tigator and subject. "Private information" in-
cludes information about behavior that occurs in a
context in which an individual can reasonably ex-
pect that no observation or recording is taking
place, and information which has been provided
for specific purposes by an individual and which
the individual can reasonably expect will not be
made public (for example, a medical record). Pri-
vate information must be individually identifiable
(i.e., the identity of the subject is or may readily
be ascertained by the investigator or associated
with the information) in order for obtaining the in-
formation to constitute research involving human
subjects.
(g) IRB means an institutional review board es-
tablished in accord with and for the purposes ex-
pressed in this policy.
(h) IRB approval means the determination of
the IRB that the research has been reviewed and
may be conducted at an institution within the con-
straints set forth by the IRB and by other institu-
tional and federal requirements.
(i) Minimal risk means that the probability and
magnitude of harm or discomfort anticipated in the
research are not greater in and of themselves than
those ordinarily encountered in daily life or during
the performance of routine physical or psycho-
logical examinations or tests.
(j) Certification means the official notification
by the institution to the supporting department or
agency, in accordance with the requirements of
this policy, that a research project or activity in-
volving human subjects has been reviewed and ap-
proved by an IRB in accordance with an approved
assurance.
§26.103 Assuring compliance with this
policy—research conducted or sup-
ported by any Federal Department
or Agency.
(a) Each institution engaged in research which
is covered by this policy and which is conducted
or supported by a federal department or agency
shall provide written assurance satisfactory to the
department or agency head that it will comply
with the requirements set forth in this policy. In
lieu of requiring submission of an assurance, indi-
vidual department or agency heads shall accept the
existence of a current assurance, appropriate for
the research in question, on file with the Office for
Protection from Research Risks, HHS, and ap-
proved for federalwide use by that office. When
the existence of an HHS-approved assurance is ac-
cepted in lieu of requiring submission of an assur-
ance, reports (except certification) required by this
policy to be made to department and agency heads
shall also be made to the Office for Protection
from Research Risks, HHS.
(b) Departments and agencies will conduct or
support research covered by this policy only if the
institution has an assurance approved as provided
in this section, and only if the institution has cer-
tified to the department or agency head that the re-
search has been reviewed and approved by an IRB
provided for in the assurance, and will be subject
to continuing review by the IRB. Assurances ap-
plicable to federally supported or conducted re-
search shall at a minimum include:
(1) A statement of principles governing the in-
stitution in the discharge of its responsibilities for
protecting the rights and welfare of human sub-
jects of research conducted at or sponsored by the
institution, regardless of whether the research is
subject to federal regulation. This may include an
appropriate existing code, declaration, or statement
of ethical principles, or a statement formulated by
the institution itself. This requirement does not
preempt provisions of this policy applicable to
department- or agency-supported or regulated re-
search and need not be applicable to any research
exempted or waived under §26.101 (b) or (i).
(2) Designation of one or more IRBs established
in accordance with the requirements of this policy,
and for which provisions are made for meeting
space and sufficient staff to support the IRB's re-
view and recordkeeping duties.
(3) A list of IRB members identified by name;
earned degrees; representative capacity; indications
of experience such as board certifications, licenses,
etc., sufficient to describe each member's chief an-
ticipated contributions to IRB deliberations; and
any employment or other relationship between
each member and the institution; for example: full-
time employee, part-time employee, member of
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§ 26.107
governing panel or board, stockholder, paid or un-
paid consultant. Changes in IRB membership shall
be reported to the department or agency head, un-
less in accord with §26.103(a) of this policy, the
existence of an HHS-approved assurance is accept-
ed. In this case, change in IRB membership shall
be reported to the Office for Protection from Re-
search Risks, HHS.
(4) Written procedures which the IRB will fol-
low (i) for conducting its initial and continuing re-
view of research and for reporting its findings and
actions to the investigator and the institution; (ii)
for determining which projects require review
more often than annually and which projects need
verification from sources other than the investiga-
tors that no material changes have occurred since
previous IRB review; and (iii) for ensuring prompt
reporting to the IRB of proposed changes in a re-
search activity, and for ensuring that such changes
in approved research, during the period for which
IRB approval has already been given, may not be
initiated without IRB review and approval except
when necessary to eliminate apparent immediate
hazards to the subject.
(5) Written procedures for ensuring prompt re-
porting to the IRB, appropriate institutional offi-
cials, and the department or agency head of (i) any
unanticipated problems involving risks to subjects
or others or any serious or continuing noncompli-
ance with this policy or the requirements or deter-
minations of the IRB and (ii) any suspension or
termination of IRB approval.
(c) The assurance shall be executed by an indi-
vidual authorized to act for the institution and to
assume on behalf of the institution the obligations
imposed by this policy and shall be filed in such
form and manner as the department or agency
head prescribes.
(d) The department or agency head will evaluate
all assurances submitted in accordance with this
policy through such officers and employees of the
department or agency and such experts or consult-
ants engaged for this purpose as the department or
agency head determines to be appropriate. The de-
partment or agency head's evaluation will take
into consideration the adequacy of the proposed
IRB in light of the anticipated scope of the institu-
tion's research activities and the types of subject
populations likely to be involved, the appropriate-
ness of the proposed initial and continuing review
procedures in light of the probable risks, and the
size and complexity of the institution.
(e) On the basis of this evaluation, the depart-
ment or agency head may approve or disapprove
the assurance, or enter into negotiations to develop
an approvable one. The department or agency head
may limit the period during which any particular
approved assurance or class of approved assur-
ances shall remain effective or otherwise condition
or restrict approval.
(f) Certification is required when the research is
supported by a federal department or agency and
not otherwise exempted or waived under §26.101
(b) or (i). An institution with an approved assur-
ance shall certify that each application or proposal
for research covered by the assurance and by
§26.103 of this Policy has been reviewed and ap-
proved by the IRB. Such certification must be sub-
mitted with the application or proposal or by such
later date as may be prescribed by the department
or agency to which the application or proposal is
submitted. Under no condition shall research cov-
ered by §26.103 of the Policy be supported prior
to receipt of the certification that the research has
been reviewed and approved by the IRB. Institu-
tions without an approved assurance covering the
research shall certify within 30 days after receipt
of a request for such a certification from the de-
partment or agency, that the application or pro-
posal has been approved by the IRB. If the certifi-
cation is not submitted within these time limits,
the application or proposal may be returned to the
institution.
(Approved by the Office of Management and Budget
under control number 9999-0020)
[56 FR 28012, 28022, June 18, 1991, 56 FR 29756, June
28, 1991]
§§26.104—26.106 [Reserved]
§ 26.107 IRB membership.
(a) Each IRB shall have at least five members,
with varying backgrounds to promote complete
and adequate review of research activities com-
monly conducted by the institution. The IRB shall
be sufficiently qualified through the experience
and expertise of its members, and the diversity of
the members, including consideration of race, gen-
der, and cultural backgrounds and sensitivity to
such issues as community attitudes, to promote re-
spect for its advice and counsel in safeguarding
the rights and welfare of human subjects. In addi-
tion to possessing the professional competence
necessary to review specific research activities, the
IRB shall be able to ascertain the acceptability of
proposed research in terms of institutional commit-
ments and regulations, applicable law, and stand-
ards of professional conduct and practice. The IRB
shall therefore include persons knowledgeable in
these areas. If an IRB regularly reviews research
that involves a vulnerable category of subjects,
such as children, prisoners, pregnant women, or
handicapped or mentally disabled persons, consid-
eration shall be given to the inclusion of one or
more individuals who are knowledgeable about
and experienced in working with these subjects.
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§26.110
(b) Every nondiscriminatory effort will be made
to ensure that no IRB consists entirely of men or
entirely of women, including the institution's con-
sideration of qualified persons of both sexes, so
long as no selection is made to the IRB on the
basis of gender. No IRB may consist entirely of
members of one profession.
(c) Each IRB shall include at least one member
whose primary concerns are in scientific areas and
at least one member whose primary concerns are
in nonscientific areas.
(d) Each IRB shall include at least one member
who is not otherwise affiliated with the institution
and who is not part of the immediate family of a
person who is affiliated with the institution.
(e) No IRB may have a member participate in
the IRB's initial or continuing review of any
project in which the member has a conflicting in-
terest, except to provide information requested by
the IRB.
(f) An IRB may, in its discretion, invite individ-
uals with competence in special areas to assist in
the review of issues which require expertise be-
yond or in addition to that available on the IRB.
These individuals may not vote with the IRB.
§26.108 IRB functions and operations.
In order to fulfill the requirements of this policy
each IRB shall:
(a) Follow written procedures in the same detail
as described in § 26.103(b)(4) and, to the extent
required by, § 26.103(b)(5).
(b) Except when an expedited review procedure
is used (see §26.110), review proposed research at
convened meetings at which a majority of the
members of the IRB are present, including at least
one member whose primary concerns are in
nonscientific areas. In order for the research to be
approved, it shall receive the approval of a major-
ity of those members present at the meeting.
§ 26.109 IRB Review of Research.
(a) An IRB shall review and have authority to
approve, require modifications in (to secure ap-
proval), or disapprove all research activities cov-
ered by this policy.
(b) An IRB shall require that information given
to subjects as part of informed consent is in ac-
cordance with §26.116. The IRB may require that
information, in addition to that specifically men-
tioned in §26.116, be given to the subjects when
in the IRB's judgment the information would
meaningfully add to the protection of the rights
and welfare of subjects.
(c) An IRB shall require documentation of in-
formed consent or may waive documentation in
accordance with §26.117.
(d) An IRB shall notify investigators and the in-
stitution in writing of its decision to approve or
disapprove the proposed research activity, or of
modifications required to secure IRB approval of
the research activity. If the IRB decides to dis-
approve a research activity, it shall include in its
written notification a statement of the reasons for
its decision and give the investigator an oppor-
tunity to respond in person or in writing.
(e) An IRB shall conduct continuing review of
research covered by this policy at intervals appro-
priate to the degree of risk, but not less than once
per year, and shall have authority to observe or
have a third party observe the consent process and
the research.
(Approved by the Office of Management and Budget
under control number 9999-0020)
§26.110 Expedited review procedures
for certain kinds of research involv-
ing no more than minimal risk, and
for minor changes in approved re-
search.
(a) The Secretary, HHS, has established, and
published as a Notice in the FEDERAL REGISTER,
a list of categories of research that may be re-
viewed by the IRB through an expedited review
procedure. The list will be amended, as appro-
priate after consultation with other departments
and agencies, through periodic republication by the
Secretary, HHS, in the FEDERAL REGISTER. A
copy of the list is available from the Office for
Protection from Research Risks, National Institutes
of Health, HHS, Bethesda, Maryland 20892.
(b) An IRB may use the expedited review pro-
cedure to review either or both of the following:
(1) Some or all of the research appearing on the
list and found by the reviewer(s) to involve no
more than minimal risk,
(2) Minor changes in previously approved re-
search during the period (of one year or less) for
which approval is authorized.
Under an expedited review procedure, the review
may be carried out by the IRB chairperson or by
one or more experienced reviewers designated by
the chairperson from among members of the IRB.
In reviewing the research, the reviewers may exer-
cise all of the authorities of the IRB except that
the reviewers may not disapprove the research. A
research activity may be disapproved only after re-
view in accordance with the non-expedited proce-
dure set forth in § 26.108(b).
(c) Each IRB which uses an expedited review
procedure shall adopt a method for keeping all
members advised of research proposals which
have been approved under the procedure.
(d) The department or agency head may restrict,
suspend, terminate, or choose not to authorize an
institution's or IRB's use of the expedited review
procedure.
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§26.111
§26.111 Criteria for IRB approval of
research.
(a) In order to approve research covered by this
policy the IRB shall determine that all of the fol-
lowing requirements are satisfied:
(1) Risks to subjects are minimized: (i) By
using procedures which are consistent with sound
research design and which do not unnecessarily
expose subjects to risk, and (ii) whenever appro-
priate, by using procedures already being per-
formed on the subjects for diagnostic or treatment
purposes.
(2) Risks to subjects are reasonable in relation
to anticipated benefits, if any, to subjects, and the
importance of the knowledge that may reasonably
be expected to result. In evaluating risks and bene-
fits, the IRB should consider only those risks and
benefits that may result from the research (as dis-
tinguished from risks and benefits of therapies
subjects would receive even if not participating in
the research). The IRB should not consider pos-
sible long-range effects of applying knowledge
gained in the research (for example, the possible
effects of the research on public policy) as among
those research risks that fall within the purview of
its responsibility.
(3) Selection of subjects is equitable. In making
this assessment the IRB should take into account
the purposes of the research and the setting in
which the research will be conducted and should
be particularly cognizant of the special problems
of research involving vulnerable populations, such
as children, prisoners, pregnant women, mentally
disabled persons, or economically or educationally
disadvantaged persons.
(4) Informed consent will be sought from each
prospective subject or the subject's legally author-
ized representative, in accordance with, and to the
extent required by §26.116.
(5) Informed consent will be appropriately doc-
umented, in accordance with, and to the extent re-
quired by §26.117.
(6) When appropriate, the research plan makes
adequate provision for monitoring the data col-
lected to ensure the safety of subjects.
(7) When appropriate, there are adequate provi-
sions to protect the privacy of subjects and to
maintain the confidentiality of data.
(b) When some or all of the subjects are likely
to be vulnerable to coercion or undue influence,
such as children, prisoners, pregnant women, men-
tally disabled persons, or economically or educa-
tionally disadvantaged persons, additional safe-
guards have been included in the study to protect
the rights and welfare of these subjects.
§ 26.112 Review by institution.
Research covered by this policy that has been
approved by an IRB may be subject to further ap-
propriate review and approval or disapproval by
officials of the institution. However, those officials
may not approve the research if it has not been
approved by an IRB.
§26.113 Suspension or termination of
IRB approval of research.
An IRB shall have authority to suspend or ter-
minate approval of research that is not being con-
ducted in accordance with the IRB's requirements
or that has been associated with unexpected seri-
ous harm to subjects. Any suspension or termi-
nation of approval shall include a statement of the
reasons for the IRB's action and shall be reported
promptly to the investigator, appropriate institu-
tional officials, and the department or agency
head.
(Approved by the Office of Management and Budget
under control number 9999-0020)
§26.114 Cooperative research.
Cooperative research projects are those projects
covered by this policy which involve more than
one institution. In the conduct of cooperative re-
search projects, each institution is responsible for
safeguarding the rights and welfare of human sub-
jects and for complying with this policy. With the
approval of the department or agency head, an in-
stitution participating in a cooperative project may
enter into a joint review arrangement, rely upon
the review of another qualified IRB, or make simi-
lar arrangements for avoiding duplication of effort.
§26.115 IRB records.
(a) An institution, or when appropriate an IRB,
shall prepare and maintain adequate documentation
of IRB activities, including the following:
(1) Copies of all research proposals reviewed,
scientific evaluations, if any, that accompany the
proposals, approved sample consent documents,
progress reports submitted by investigators, and re-
ports of injuries to subjects.
(2) Minutes of IRB meetings which shall be in
sufficient detail to show attendance at the meet-
ings; actions taken by the IRB; the vote on these
actions including the number of members voting
for, against, and abstaining; the basis for requiring
changes in or disapproving research; and a written
summary of the discussion of controverted issues
and their resolution.
(3) Records of continuing review activities.
(4) Copies of all correspondence between the
IRB and the investigators.
(5) A list of IRB members in the same detail as
described is § 26.103(b)(3).
(6) Written procedures for the IRB in the same
detail as described in §26.103(b)(4) and
§26.103(b)(5).
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§26.116
(7) Statements of significant new findings pro-
vided to subjects, as required by §26.116(b)(5).
(b) The records required by this policy shall be
retained for at least 3 years, and records relating
to research which is conducted shall be retained
for at least 3 years after completion of the re-
search. All records shall be accessible for inspec-
tion and copying by authorized representatives of
the department or agency at reasonable times and
in a reasonable manner.
(Approved by the Office of Management and Budget
under control number 9999-0020)
§26.116 General requirements for in-
formed consent.
Except as provided elsewhere in this policy, no
investigator may involve a human being as a sub-
ject in research covered by this policy unless the
investigator has obtained the legally effective in-
formed consent of the subject or the subject's le-
gally authorized representative. An investigator
shall seek such consent only under circumstances
that provide the prospective subject or the rep-
resentative sufficient opportunity to consider
whether or not to participate and that minimize the
possibility of coercion or undue influence. The in-
formation that is given to the subject or the rep-
resentative shall be in language understandable to
the subject or the representative. No informed con-
sent, whether oral or written, may include any ex-
culpatory language through which the subject or
the representative is made to waive or appear to
waive any of the subject's legal rights, or releases
or appears to release the investigator, the sponsor,
the institution or its agents from liability for neg-
ligence.
(a) Basic elements of informed consent. Except
as provided in paragraph (c) or (d) of this section,
in seeking informed consent the following infor-
mation shall be provided to each subject:
(1) A statement that the study involves research,
an explanation of the purposes of the research and
the expected duration of the subject's participation,
a description of the procedures to be followed, and
identification of any procedures which are experi-
mental;
(2) A description of any reasonably foreseeable
risks or discomforts to the subject;
(3) A description of any benefits to the subject
or to others which may reasonably be expected
from the research;
(4) A disclosure of appropriate alternative pro-
cedures or courses of treatment, if any, that might
be advantageous to the subject;
(5) A statement describing the extent, if any, to
which confidentiality of records identifying the
subject will be maintained;
(6) For research involving more than minimal
risk, an explanation as to whether any compensa-
tion and an explanation as to whether any medical
treatments are available if injury occurs and, if so,
what they consist of, or where further information
may be obtained;
(7) An explanation of whom to contact for an-
swers to pertinent questions about the research and
research subjects' rights, and whom to contact in
the event of a research-related injury to the sub-
ject; and
(8) A statement that participation is voluntary,
refusal to participate will involve no penalty or
loss of benefits to which the subject is otherwise
entitled, and the subject may discontinue participa-
tion at any time without penalty or loss of benefits
to which the subject is otherwise entitled.
(b) Additional elements of informed consent.
When appropriate, one or more of the following
elements of information shall also be provided to
each subject:
(1) A statement that the particular treatment or
procedure may involve risks to the subject (or to
the embryo or fetus, if the subject is or may be-
come pregnant) which are currently unforeseeable;
(2) Anticipated circumstances under which the
subject's participation may be terminated by the
investigator without regard to the subject's con-
sent;
(3) Any additional costs to the subject that may
result from participation in the research;
(4) The consequences of a subject's decision to
withdraw from the research and procedures for or-
derly termination of participation by the subject;
(5) A statement that significant new findings de-
veloped during the course of the research which
may relate to the subject's willingness to continue
participation will be provided to the subject; and
(6) The approximate number of subjects in-
volved in the study.
(c) An IRB may approve a consent procedure
which does not include, or which alters, some or
all of the elements of informed consent set forth
above, or waive the requirement to obtain in-
formed consent provided the IRB finds and docu-
ments that:
(1) The research or demonstration project is to
be conducted by or subject to the approval of state
or local government officials and is designed to
study, evaluate, or otherwise examine: (i) Public
benefit of service programs; (ii) procedures for ob-
taining benefits or services under those programs;
(iii) possible changes in or alternatives to those
programs or procedures; or (iv) possible changes
in methods or levels of payment for benefits or
services under those programs; and
(2) The research could not practicably be car-
ried out without the waiver or alteration.
(d) An IRB may approve a consent procedure
which does not include, or which alters, some or
all of the elements of informed consent set forth
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§26.117
in this section, or waive the requirements to obtain
informed consent provided the IRB finds and doc-
uments that:
(1) The research involves no more than minimal
risk to the subjects;
(2) The waiver or alteration will not adversely
affect the rights and welfare of the subjects;
(3) The research could not practicably be car-
ried out without the waiver or alteration; and
(4) Whenever appropriate, the subjects will be
provided with additional pertinent information
after participation.
(e) The informed consent requirements in this
policy are not intended to preempt any applicable
federal, state, or local laws which require addi-
tional information to be disclosed in order for in-
formed consent to be legally effective.
(f) Nothing in this policy is intended to limit the
authority of a physician to provide emergency
medical care, to the extent the physician is per-
mitted to do so under applicable federal, state, or
local law.
(Approved by the Office of Management and Budget
under control number 9999-0020)
§26.117 Documentation of informed
consent.
(a) Except as provided in paragraph (c) of this
section, informed consent shall be documented by
the use of a written consent form approved by the
IRB and signed by the subject or the subject's le-
gally authorized representative. A copy shall be
given to the person signing the form.
(b) Except as provided in paragraph (c) of this
section, the consent form may be either of the fol-
lowing:
(1) A written consent document that embodies
the elements of informed consent required by
§26.116. This form may be read to the subject or
the subject's legally authorized representative, but
in any event, the investigator shall give either the
subject or the representative adequate opportunity
to read it before it is signed; or
(2) A short form written consent document stat-
ing that the elements of informed consent required
by §26.116 have been presented orally to the sub-
ject or the subject's legally authorized representa-
tive. When this method is used, there shall be a
witness to the oral presentation. Also, the IRB
shall approve a written summary of what is to be
said to the subject or the representative. Only the
short form itself is to be signed by the subject or
the representative. However, the witness shall sign
both the short form and a copy of the summary,
and the person actually obtaining consent shall
sign a copy of the summary. A copy of the sum-
mary shall be given to the subject or the represent-
ative, in addition to a copy of the short form.
(c) An IRB may waive the requirement for the
investigator to obtain a signed consent form for
some or all subjects if it finds either:
(1) That the only record linking the subject and
the research would be the consent document and
the principal risk would be potential harm result-
ing from a breach of confidentiality. Each subject
will be asked whether the subject wants docu-
mentation linking the subject with the research,
and the subject's wishes will govern; or
(2) That the research presents no more than
minimal risk of harm to subjects and involves no
procedures for which written consent is normally
required outside of the research context.
In cases in which the documentation require-
ment is waived, the IRB may require the inves-
tigator to provide subjects with a written statement
regarding the research.
(Approved by the Office of Management and Budget
under control number 9999-0020)
§26.118 Applications and proposals
lacking definite plans for involve-
ment of human subjects.
Certain types of applications for grants, cooper-
ative agreements, or contracts are submitted to de-
partments or agencies with the knowledge that
subjects may be involved within the period of sup-
port, but definite plans would not normally be set
forth in the application or proposal. These include
activities such as institutional type grants when se-
lection of specific projects is the institution's re-
sponsibility; research training grants in which the
activities involving subjects remain to be selected;
and projects in which human subjects' involve-
ment will depend upon completion of instruments,
prior animal studies, or purification of compounds.
These applications need not be reviewed by an
IRB before an award may be made. However, ex-
cept for research exempted or waived under
§26.101 (b) or (i), no human subjects may be in-
volved in any project supported by these awards
until the project has been reviewed and approved
by the IRB, as provided in this policy, and certifi-
cation submitted, by the institution, to the depart-
ment or agency.
§26.119 Research undertaken without
the intention of involving human
subjects.
In the event research is undertaken without the
intention of involving human subjects, but it is
later proposed to involve human subjects in the re-
search, the research shall first be reviewed and ap-
proved by an IRB, as provided in this policy, a
certification submitted, by the institution, to the
department or agency, and final approval given to
the proposed change by the department or agency.
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§26.124
§26.120 Evaluation and disposition of
applications and proposals for re-
search to be conducted or sup-
ported by a Federal Department or
Agency.
The department or agency head will evaluate all
applications and proposals involving human sub-
jects submitted to the department or agency
through such officers and employees of the depart-
ment or agency and such experts and consultants
as the department or agency head determines to be
appropriate. This evaluation will take into consid-
eration the risks to the subjects, the adequacy of
protection against these risks, the potential benefits
of the research to the subjects and others, and the
importance of the knowledge gained or to be
gained.
(b) On the basis of this evaluation, the depart-
ment or agency head may approve or disapprove
the application or proposal, or enter into negotia-
tions to develop an approvable one.
§26.121 [Reserved]
§ 26.122 Use of Federal funds.
Federal funds administered by a department or
agency may not be expended for research involv-
ing human subjects unless the requirements of this
policy have been satisfied.
§26.123 Early termination of research
support: Evaluation of applications
and proposals.
(a) The department or agency head may require
that department or agency support for any project
be terminated or suspended in the manner pre-
scribed in applicable program requirements, when
the department or agency head finds an institution
has materially failed to comply with the terms of
this policy.
(b) In making decisions about supporting or ap-
proving applications or proposals covered by this
policy the department or agency head may take
into account, in addition to all other eligibility re-
quirements and program criteria, factors such as
whether the applicant has been subject to a termi-
nation or suspension under paragarph (a) of this
section and whether the applicant or the person or
persons who would direct or has have directed the
scientific and technical aspects of an activity has
have, in the judgment of the department or agency
head, materially failed to discharge responsibility
for the protection of the rights and welfare of
human subjects (whether or not the research was
subject to federal regulation).
§26.124 Conditions.
With respect to any research project or any
class of research projects the department or agency
head may impose additional conditions prior to or
at the time of approval when in the judgment of
the department or agency head additional condi-
tions are necessary for the protection of human
subjects.
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PART 27—PROGRAM FRAUD CIVIL
REMEDIES
Sec.
27.1 Basis and purpose.
27.2 Definitions.
27.3 Basis for civil penalties and assessments.
27.4 Investigation.
27.5 Review by the reviewing official.
27.6 Prerequisites for issuing a complaint.
27.7 Complaint.
27.8 Service of complaint.
27.9 Answer.
27.10 Default upon failure to file an answer.
27.11 Referral of complaint and answer to the presiding
officer.
27.12 Notice of hearing.
27.13 Parties to the hearing.
27.14 Separation of functions.
27.15 Ex parte contacts.
27.16 Disqualification of the reviewing official or pre-
siding officer.
27.17 Rights of parties.
27.18 Authority of the presiding officer.
27.19 Prehearing conferences.
27.20 Disclosure of documents.
27.21 Discovery.
27.22 Exchange of witness lists, statements, and exhib-
its.
27.23 Subpoenas for attendance at hearing.
27.24 Protective order.
27.25 Fees.
27.26 Form, filing and service of papers.
27.27 Computation of time.
27.28 Motions.
27.29 Sanctions.
27.30 The hearing and burden of proof.
27.31 Determining the amount of penalties and assess-
ments.
27.32 Location of hearing.
27.33 Witnesses.
27.34 Evidence.
27.35 The record.
27.36 Post-hearing briefs.
27.37 Initial decision.
27.38 Reconsideration of initial decision.
27.39 Appeal to authority head.
27.40 Stays ordered by the Department of Justice.
27.41 Stay pending appeal.
27.42 Judicial review.
27.43 Collection of civil penalties and assessments.
27.44 Right to administrative offset.
27.45 Deposit in Treasury of United States.
27.46 Compromise or settlement.
27.47 Limitations.
27.48 Delegated functions.
AUTHORITY: 31 U.S.C. 3801-3812; Pub. L. 101^10,
104 Stat. 890, 28 U.S.C. 2461 note; Pub. L. 104-134, 110
Stat. 1321, 31 U.S.C. 3701 note.
SOURCE: 53 FR 15182, Apr. 27, 1988, unless otherwise
noted.
§27.1 Basis and purpose.
(a) Basis. This part implements the Program
Fraud Civil Remedies Act of 1986, Public Law
No. 99-509, sections 6101-6104, 100 Stat. 1874
(October 21, 1986), to be codified at 31 U.S.C.
3801-3812. 31 U.S.C. 3809 of the statute requires
each authority head to promulgate regulations nec-
essary to implement the provisions of the statute.
(b) Purpose. This part (1) establishes adminis-
trative procedures for imposing civil penalties and
assessments against persons who make, submit, or
present, or cause to be made, submitted, or pre-
sented, false, fictitious, or fraudulent claims or
written statements to the Environmental Protection
Agency, and (2) specifies the hearing and appeal
rights of persons subject to allegations of liability
for such penalties and assessments.
§27.2 Definitions.
Administrative Law Judge means an administra-
tive law judge in the Authority appointed pursuant
to 5 U.S.C. 3105 or detailed to the Authority pur-
suant to 5 U.S.C. 3344.
Administrator means the Administrator of the
United States Environmental Protection Agency.
Authority means the United States Environ-
mental Protection Agency.
Benefit means, in the context of "statement,"
anything of value, including but not limited to any
advantage, preference, privilege, license, permit,
favorable decision, ruling, status, or loan guaran-
tee.
Claim means any request, demand, or submis-
sion—
(a) Made to the Authority for property, services,
or money (including money representing grants,
loans, insurance, or benefits);
(b) Made to a recipient of property, services, or
money from the Authority or to a party to a con-
tract with the Authority—
(1) For property or services if the United
States—
(i) Provided such property or services;
(ii) Provided any portion of the funds for the
purchase of such property or services; or
(iii) Will reimburse such recipient or party for
the purchase of such property or services; or
(2) For the payment of money (including money
representing grants, loans, insurance, or benefits) if
the United States—
(i) Provided any portion of the money requested
or demanded; or
(ii) Will reimburse such recipient or party for
any portion of the money paid on such request or
demand; or
(c) Made to the Authority which has the effect
of decreasing an obligation to pay or account for
property, services, or money.
Complaint means the administrative complaint
served by the reviewing official on the defendant
under §27.7.
-------
§27.3
Defendant means any person alleged in a com-
plaint under §27.7 to be liable for a civil penalty
or assessment under §27.3.
Environmental Appeals Board means the Board
within the Agency described in § 1.25 of this title.
Government means the United States Govern-
ment.
Hearing Clerk means the Hearing Clerk, A—110,
United States Environmental Protection Agency,
401 M St. SW., Washington, DC 20460.
Individual means a natural person.
Initial decision means the written decision of
the presiding officer required by §27.10 or
§27.37, and includes a revised initial decision is-
sued following a remand or a motion for reconsid-
eration.
Investigating official means the Inspector Gen-
eral of the United States Environmental Protection
Agency or an officer or employee of the Office of
Inspector General designated by the Inspector
General and serving in a position for which the
rate of basic pay is not less than the minimum rate
of basic pay for grade GS-16 under the General
Schedule.
Knows or has reason to know means that a per-
son, with respect to a claim or statement—
(a) Has actual knowledge that the claim or
statement is false, fictitious, or fraudulent;
(b) Acts in deliberate ignorance of the truth or
falsity of the claim or statement; or
(c) Acts in reckless disregard of the truth or fal-
sity of the claim or statement.
Makes, wherever it appears, shall include the
terms presents, submits, and causes to be made,
presented, or submitted. As the context requires,
making or made shall likewise include the cor-
responding forms of such terms.
Person means any individual, partnership, cor-
poration, association, or private organization, and
includes the plural of those terms.
Presiding officer means the administrative law
judge designated by the Chief administrative law
judge to serve as presiding officer.
Representative means an attorney who is a
member in good standing of the bar of any State,
Territory, or possession of the United States or of
the District of Columbia or the Commonwealth of
Puerto Rico, or other representative who must con-
form to the standards of conduct and ethics re-
quired of practitioners before the courts of the
United States.
Reviewing official means the General Counsel
of the Authority or his designee who is—
(a) Not subject to supervision by, or required to
report to, the investigating official;
(b) Not employed in the organizational unit of
the Authority in which the investigating official is
employed; and
(c) Serving in a position for which the rate of
basic pay is not less than the minimum rate of
basic pay for grade GS-16 under the General
Schedule.
Statement means any representation, certifi-
cation, affirmation, document, record, or account-
ing or bookkeeping entry made—
(a) With respect to a claim or to obtain the ap-
proval or payment of a claim (including relating to
eligibility to make a claim); or
(b) With respect to (including relating to eligi-
bility for)—
(1) A contract with, or a bid or proposal for a
contract with; or
(2) A grant, loan, or benefit from,
the Authority, or any State, political subdivision of
a State, or other party, if the United States Gov-
ernment provides any portion of the money or
property under such contract or for such grant,
loan, or benefit, or if the Government will reim-
burse such State, political subdivision, or party for
any portion of the money or property under such
contract or for such grant, loan, or benefit.
[45 FR 24363, Apr. 9, 1980, as amended at 57 FR 5326,
Feb. 13, 1992]
§27.3 Basis for civil penalties and as-
sessments.
(a) Claims. (1) Except as provided in paragraph
(c) of this section, any person who makes a claim
that the person knows or has reason to know—
(i) Is false, fictitious, or fraudulent;
(ii) Includes or is supported by any written
statement which asserts a material fact which is
false, fictitious, or fraudulent;
(iii) Includes, or is supported by, any written
statement that—
(A) Omits a material fact;
(B) Is false, fictitious, or fraudulent as a result
of such omission; and
(C) Is a statement in which the person making
such statement has a duty to include such material
fact; or
(iv) Is for payment for the provision of property
or services which the person has not provided as
claimed, shall be subject, in addition to any other
remedy that may be prescribed by law, to a civil
penalty of not more than $5,500 l for each such
claim.
(2) Each voucher, invoice, claim form, or other
individual request or demand for property, serv-
ices, or money constitutes a separate claim.
1 As adjusted in accordance with the Federal Civil Pen-
alties Inflation Adjustment Act of 1990 (Pub. L. 101^10,
104 Stat. 890), as amended by the Debt Collection Im-
provement Act of 1996 (Pub. L. 104-134, 110 Stat.
1321).
-------
§27.5
(3) A claim shall be considered made to the Au-
thority, recipient, or party when such claim is ac-
tually made to an an agent, fiscal intermediary, or
other entity, including any State or political sub-
division thereof, acting for or on behalf of the Au-
thority, recipient, or party.
(4) Each claim for property, services, or money
is subject to a civil penalty regardless of whether
such property, services, or money is actually deliv-
ered or paid.
(5) If the Government has made any payment
(including transferred property or provided serv-
ices) on a claim, a person subject to a civil penalty
under paragraph (a)(l) of this section, shall also be
subject to an assessment of not more than twice
the amount of such claim or that portion thereof
that is determined to be in violation of paragraph
(a)(l) of this section. Such assessment shall be in
lieu of damages sustained by the Government be-
cause of such claim.
(b) Statements. (1) Except as provided in para-
graph (c) of this section, any person who makes
a written statement that—
(i) The person knows or has reason to know—
(A) Asserts a material fact which is false, fac-
titious, or fraudulent; or
(B) Is false, factitious, or fraudulent because it
omits a material fact that the person making the
statement has a duty to include in such statement;
and
(ii) Contains, or is accompanied by, an express
certification or affirmation of the truthfulness and
accuracy of the contents of the statement, shall be
subject, in addition to any other remedy that may
be prescribed by law, to a civil penalty of not
more than $5,5002 for each such statement.
(2) Each written representation, certification, or
affirmation constitutes a separate statement.
(3) A statement shall be considered made to the
Authority when such statement is actually made to
an agent, fiscal intermediary, or other entity, in-
cluding any State or political subdivision thereof,
acting for or on behalf of such Authority.
(c) No proof of specific intent to defraud is re-
quired to establish liability under this section.
(d) In any case in which it is determined that
more than one person is liable for making a claim
or statement under this section, each such person
may be held liable for a civil penalty under this
section.
(e) In any case in which it is determined that
more than one person is liable for making a claim
under this section on which the Government has
made payment (including transferred property or
2 As adjusted in accordance with the Federal Civil Pen-
alties Inflation Adjustment Act of 1990 (Pub. L. 101^110,
104 Stat. 890), as amended by the Debt Collection Im-
provement Act of 1996 (Pub. L. 104-134, 110 Stat.
1321).
provided services), an assessment may be imposed
against any such person or jointly and severally
against any combination of such persons.
[53 FR 15182, Apr. 27, 1988, as amended at 61 FR
69366, Dec. 31, 1996]
§27.4 Investigation.
(a) If the investigating official concludes that a
subpoena pursuant to the authority conferred by 31
U.S.C. 3804(a) is warranted—
(1) The subpoena so issued shall notify the per-
son to whom it is addressed of the authority under
which the subpoena is issued and shall identify the
records or documents sought;
(2) The investigating official may designate a
person to act on his or her behalf to receive the
documents sought; and
(3) The person receiving such subpoena shall be
required to tender to the investigating official or
the person designated to receive the documents a
certification that the documents sought have been
produced, or that such documents are not available
and the reasons therefor, or that such documents,
suitably identified, have been withheld based upon
the assertion of an identified privilege.
(b) If the investigating official concludes that an
action under the Program Fraud Civil Remedies
Act may be warranted, the investigating official
shall submit a report containing the findings and
conclusions of such investigation to the reviewing
official.
(c) Nothing in this section shall preclude or
limit an investigating official's discretion to defer
or postpone a report or referral to the reviewing
official to avoid interference with a criminal inves-
tigation or prosecution.
(d) Nothing in this section modifies any respon-
sibility of an investigating official to report viola-
tions of criminal law to the Attorney General.
§27.5 Review by the reviewing official.
(a) If, based on the report of the investigating
official under §27.4(b), the reviewing official de-
termines that there is adequate evidence to believe
that a person is liable under §27.3 of this part, the
reviewing official shall transmit to the Attorney
General a written notice of the reviewing official's
intention to issue a complaint under § 27.7.
(b) Such notice shall include—
(1) A statement of the reviewing official's rea-
sons for issuing a complaint;
(2) A statement specifying the evidence that
supports the allegations of liability;
(3) A description of the claims or statements
upon which the allegations of liability are based;
(4) An estimate of the amount of money or the
value of property, services, or other benefits re-
quested or demanded in violation of § 27.3 of this
part;
-------
§27.6
(5) A statement of any exculpatory or mitigating
circumstances that may relate to the claims or
statements known by the reviewing official or the
investigating official; and
(6) A statement that there is a reasonable pros-
pect of collecting an appropriate amount of pen-
alties and assessments.
§27.6 Prerequisites for issuing a com-
plaint.
(a) The reviewing official may issue a com-
plaint under §27.7 only if—
(1) The Department of Justice approves the is-
suance of a complaint in written statement de-
scribed in 31 U.S.C. 3803(b)(l), and
(2) In the case of allegations of liability under
§ 27.3(a) with respect to a claim, the reviewing of-
ficial determines that, with respect to such claim
or a group of related claims submitted at the same
time such claim is submitted (as defined in para-
graph (b) of this section), the amount of money or
the value of property or services demanded or re-
quested in violation of §27.3(a) does not exceed
$150,000.
(b) For the purposes of this section, a related
group of claims submitted at the same time shall
include only those claims arising from the same
transaction (e.g., grant, loan, application, or con-
tract) that are submitted simultaneously as part of
a single request, demand, or submission.
(c) Nothing in this section shall be construed to
limit the reviewing official's authority to join in a
single complaint against a person, claims that are
unrelated or were not submitted simultaneously,
regardless of the amount of money, or the value
of property or services, demanded or requested.
§27.7 Complaint.
(a) On or after the date the Department of Jus-
tice approves the issuance of a complaint in ac-
cordance with 31 U.S.C. 3803(b)(l), the reviewing
official may serve a complaint on the defendant,
as provided in §27.8.
(b) The complaint shall state—
(1) The allegations of liability against the de-
fendant, including the statuory basis for liability,
an identification of the claims or statements that
are the basis for the alleged liability, and the rea-
sons why liability allegedly arises from such
claims or statements;
(2) The maximum amount of penalties and as-
sessments for which the defendant may be held
liable;
(3) Instructions for filing an answer to request
a hearing, including a specific statement of the de-
fendant's right to request a hearing by filing an
answer and to be represented by a representative;
and
(4) That failure to file an answer within 30 days
of service of the complaint will result in the impo-
sition of the maximum amount of penalties and as-
sessments without right to appeal as provided in
§27.10.
(c) At the same time the reviewing official
serves the complaint, he or she shall serve the de-
fendant with a copy of these regulations.
§ 27.8 Service of complaint.
(a) Service of a complaint must be made by cer-
tified or registered mail or by delivery in any
manner authorized by Rule 4(d) of the Federal
Rules of Civil Procedure. Service is complete
upon receipt.
(b) Proof of service, stating the name and ad-
dress of the person on whom the complaint was
served, and the manner and date of service, may
be made by—
(1) Affidavit of the individual serving the com-
plaint by delivery;
(2) A United States Postal Service return receipt
card acknowledging receipt; or
(3) Written acknowledgment of receipt by the
defendant or his or her representative.
§ 27.9 Answer.
(a) The defendant may request a hearing by fil-
ing an answer with the reviewing official within
30 days of service of the complaint. An answer
shall be deemed to be a request for hearing.
(b) In the answer, the defendant—
(1) Shall admit or deny each of the allegations
of liability made in the complaint;
(2) Shall state any defense on which the defend-
ant intends to rely;
(3) May state any reasons why the defendant
contends that the penalties and assessments should
be less than the statutory maximum; and
(4) Shall state the name, address, and telephone
number of the person authorized by the defendant
to act as defendant's representative, if any.
(c) If the defendant is unable to file an answer
meeting the requirements of paragraph (b) of this
section within the time provided, the defendant
may, before the expiration of 30 days from service
of the complaint, file with the reviewing official a
general answer denying liability and requesting a
hearing, and a request for an extension of time
within which to file an answer meeting require-
ments of paragraph (b) of this section. The review-
ing official shall file promptly with the hearing
clerk the complaint, the general answer denying li-
ability, and the request for an extension of time as
provided in § 27.11. Upon assignment to a presid-
ing officer, the presiding officer may, for good
cause shown, grant the defendant up to 30 addi-
tional days within which to file an answer meeting
the requirements of paragraph (b) of this section.
-------
§27.13
§27.10 Default upon failure to file an
answer.
(a) If the defendant does not file an answer
within the time prescribed in § 27.9(a), the review-
ing official may file the complaint with the hear-
ing clerk as provided in § 27.11.
(b) Upon assignment of the complaint to a pre-
siding officer, the presiding officer shall promptly
serve on defendant in the manner prescribed in
§27.8, a notice that an initial decision will be is-
sued under this section.
(c) The presiding officer shall assume the facts
alleged in the complaint to be true, and, if such
facts establish liability under §27.3, the presiding
officer shall issue an initial decision imposing the
maximum amount of penalties and assessments al-
lowed under the statute.
(d) Except as otherwise provided in this section,
by failing to file a timely answer, the defendant
waives any right to further review of the penalties
and assessments imposed under paragraph (c) of
this section, and the initial decision shall become
final and binding upon the parties 30 days after it
is issued.
(e) If, before such an initial decision becomes
final, the defendant files a motion seeking to re-
open on the grounds that extraordinary cir-
cumstances prevented the defendant from filing an
answer, the initial decision shall be stayed pending
the presiding officer's decision on the motion.
(f) If, on such motion, the defendant can dem-
onstrate extraordinary circumstances excusing the
failure to file a timely answer, the presiding offi-
cer shall withdraw the initial decision in paragraph
(c) of this section, if such a decision has been is-
sued, and shall grant the defendant an opportunity
to answer the complaint.
(g) A decision of the presiding officer denying
a defendant's motion under paragraph (e) of this
section, is not subject to reconsideration under
§27.38.
(h) The defendant may appeal to the Environ-
mental Appeals Board the decision denying a mo-
tion to reopen by filing a notice of appeal within
15 days after the presiding officer denies the sec-
tion. The timely filing of a notice of appeal shall
stay the initial decision the Environmental Appeals
Board decides the issue.
(i) If the defendant files a timely notice of ap-
peal, the presiding officer shall forward the record
of the proceeding to the Environmental Appeals
Board.
(j) The Environmental Appeals Board shall de-
cide expeditiously whether extraordinary cir-
cumstances excuse the defendant's failure to file a
timely answer based solely on the record before
the presiding officer.
(k) If the Environmental Appeals Board decides
that extraordinary circumstances excused the de-
fendant's failure to file a timely answer, the Envi-
ronmental Appeals Board shall remand the case to
the presiding officer with instructions to grant the
defendant an opportunity to answer.
(1) If the Environmental Appeals Board decides
that the defendant's failure to file a timely answer
is not excused, the Environmental Appeals Board
shall reinstate the initial decision of the presiding
officer, which shall become final and binding upon
the parties 30 days after the Environmental Ap-
peals Board issues such decision.
[45 FR 24363, Apr. 9, 1980, as amended at 57 FR 5326,
Feb. 13, 1992]
§27.11 Referral of complaint and an-
swer to the presiding officer.
(a) Upon receipt of an answer, the reviewing of-
ficial shall file the complaint and answer with the
hearing clerk.
(b) The hearing clerk shall forward the com-
plaint and answer to the Chief administrative law
judge who shall assign himself or herself or an-
other administrative law judge as presiding officer.
The presiding officer shall then obtain the com-
plaint and answer from the Chief administrative
law judge and notify the parties of his or her as-
signment.
§ 27.12 Notice of hearing.
(a) When the presiding officer obtains the com-
plaint and answer, the presiding officer shall
promptly serve a notice of hearing upon the de-
fendant in the manner prescribed by § 27.8. At the
same time, the presiding officer shall send a copy
of such notice to the representative for the Gov-
ernment.
(b) Such notice shall include—
(1) The date, time and place, and the nature of
the hearing;
(2) The legal authority and jurisdiction under
which the hearing is to be held;
(3) The matters of fact and law to be asserted;
(4) A description of the procedures for the con-
duct of the hearing;
(5) The name, address, and telephone number of
the representative of the Government and of the
defendant, if any; and
(6) Such other matters as the presiding officer
deems appropriate.
(c) The presiding officer shall issue the notice
of hearing at least twenty (20) days prior to the
date set for the hearing.
§27.13 Parties to the hearing.
(a) The parties to the hearing shall be the de-
fendant and the Authority.
-------
§27.14
(b) Pursuant to 31 U.S.C. 3730(c)(5), a private
plaintiff under the False Claims Act may partici-
pate in these proceedings to the extent authorized
by the provisions of that Act.
§27.14 Separation of functions.
(a) The investigating official, the reviewing offi-
cial, and any employee or agent of the Authority
who takes part in investigating, preparing, or pre-
senting a particular case, may not, in such case or
a factually related case—
(1) Participate in the hearing as the presiding
officer;
(2) Participate or advise in the initial decision or
the review of the initial decision by the Environ-
mental Appeals Board, except as a witness or rep-
resentative in public proceedings; or
(3) Make the collection of penalties and assess-
ments under 31 U.S.C. 3806.
(b) Neither the presiding officer nor the mem-
bers of the Environmental Appeals Board shall be
responsible to, or subject to, the supervision or di-
rection of the investigating official or the review-
ing official.
(c) Except as provided in paragraph (a) of this
section, the representative for the Government may
be employed anywhere in the authority, including
in the offices of either the investigating official or
the reviewing official.
[45 FR 24363, Apr. 9, 1980, as amended at 57 FR 5326,
Feb. 13, 1992]
§27.15 Ex parte contacts.
No party or person (except employees of the
presiding officer's office) shall communicate in
any way with the presiding officer on any matter
at issue in a case, unless on notice and opportunity
for all parties to participate. This provision does
not prohibit a person or party from inquiring about
the status of a case or asking routine question con-
cerning administrative functions or procedures.
§27.16 Disqualification of the review-
ing official or presiding officer.
(a) A reviewing official or presiding officer in
a particular case may disqualify himself or herself
at any time.
(b) A party may file a motion for disqualifica-
tion of a reviewing official or presiding officer
with the hearing clerk. Such motion shall be ac-
companied by an affidavit alleging personal bias
or other reason for disqualification.
(c) Such motion and affidavit shall be filed
within 15 days of the party's discovery of reasons
requiring disqualification, or such objections shall
be deemed waived.
(d) Such affidavit shall state specific facts that
support the party's belief that personal bias or
other reason for disqualification exists and the
time and circumstances of the party's discovery of
such facts. It shall be accompanied by a certificate
of the representative of record that it is made in
good faith.
(e) Upon the filing of such a motion and affida-
vit, the presiding officer shall proceed no further
in the case until he or she resolves the matter of
disqualification in accordance with paragraph (f)
of this section.
(f)(l) If the presiding officer determines that the
reviewing official is disqualified because the re-
viewing official could not have made an impartial
determination pursuant to §27.5(a), the presiding
officer shall dismiss the complaint without preju-
dice.
(2) If the presiding officer disqualifies himself
or herself, the case shall be reassigned promptly to
another presiding officer.
(3) If the presiding officer denies a motion to
disqualify, the Environmental Appeals Board may
determine the matter only as part of its review of
the initial decision upon appeal, if any.
[45 FR 24363, Apr. 9, 1980, as amended at 57 FR 5326,
Feb. 13, 1992]
§27.17 Rights of parties.
Except as otherwise limited by this part, all par-
ties may—
(a) Be accompanied, represented, and advised
by a representative;
(b) Participate in any conference held by the
presiding officer;
(c) Conduct discovery;
(d) Agree to stipulations of fact or law, which
shall be made part of the record;
(e) Present evidence relevant to the issues at the
hearing;
(f) Present and cross-examine witnesses;
(g) Present oral arguments at the hearing as per-
mitted by the presiding officer; and
(h) Submit written briefs and proposed findings
of fact and conclusions of law after the hearing.
§27.18 Authority of the presiding offi-
cer.
(a) The presiding officer shall conduct a fair
and impartial hearing, avoid delay, maintain order,
and assure that a record of the proceeding is made.
(b) The presiding officer has the authority to—
(1) Set and change the date, time, and place of
the hearing upon reasonable notice to the parties;
(2) Continue or recess the hearing in whole or
in part for a reasonable period of time;
(3) Hold conferences to identify or simplify the
issues, or to consider other matters that may aid
in the expeditious disposition of the proceeding;
(4) Administer oaths and affirmations;
-------
§27.21
(5) Issue subpoenas requiring the attendance of
witnesses and the production of documents at
depositions or at hearings;
(6) Rule on motions and other procedural mat-
ters;
(7) Regulate the scope and timing of discovery;
(8) Regulate the course of the hearing and the
conduct of representatives and parties;
(9) Examine witnesses;
(10) Receive, rule on, exclude, or limit evi-
dence;
(11) Upon motion of a party, take official notice
of facts;
(12) Upon motion of a party, decide cases, in
whole or in part, by summary judgment where
there is no disputed issue of material fact;
(13) Conduct any conference, argument, or
hearing on motions in person or by telephone; and
(14) Exercise such other authority as is nec-
essary to carry out the responsibilities of the pre-
siding officer under this part.
(c) The presiding officer does not have the au-
thority to find Federal statutes or regulations in-
valid.
§27.19 Prehearing conferences.
(a) The presiding officer may schedule prehear-
ing conferences as appropriate.
(b) Upon the motion of any party, the presiding
officer shall schedule at least one prehearing con-
ference at a reasonable time in advance of the
hearing.
(c) The presiding officer may use prehearing
conferences to discuss the following:
(1) Simplification of the issues;
(2) The necessity or desirability of amendments
to the pleadings, including the need for a more
definite statement;
(3) Stipulations and admissions of fact as to the
contents and authenticity of documents;
(4) Whether the parties can agree to submission
of the case on a stipulated record;
(5) Whether a party chooses to waive appear-
ance at an oral hearing and to submit only docu-
mentary evidence (subject to the objection of other
parties) and written argument;
(6) Limitation of the number of witnesses;
(7) Scheduling dates for the exchange of wit-
ness lists and of proposed exhibits;
(8) Discovery;
(9) The time and place for the hearing; and
(10) Such other matters as may tend to expedite
the fair and just disposition of the proceedings.
(d) The presiding officer may issue an order
containing all matters agreed upon by the parties
or ordered by the presiding officer at a prehearing
conference.
§ 27.20 Disclosure of documents.
(a) Upon written request to the reviewing offi-
cial, the defendant may review any relevant and
material documents, transcripts, records, and other
materials that relate to the allegations set out in
the complaint and upon which the findings and
conclusions of the investigating official under
§27.4(b) are based, unless such documents are
subject to a privilege under Federal law. Upon
payment of fees for duplication, the defendant may
obtain copies of such documents.
(b) Upon written request to the reviewing offi-
cial, the defendant also may obtain a copy of all
exculpatory information in the possession of the
reviewing official or investigating official relating
to the allegations in the complaint, even if it is
contained in a document that would otherwise be
privileged. If the document would otherwise be
privileged, only that portion containing excul-
patory information must be disclosed.
(c) The notice sent to the Attorney General
from the reviewing official as described in §27.5
is not discoverable under any circumstances.
(d) The defendant may file a motion to compel
disclosure of the documents subject to the provi-
sions of this section. Such a motion may only be
filed following the filing of an answer pursuant to
§27.9.
§27.21 Discovery.
(a) The following types of discovery are author-
ized:
(1) Requests for production of documents for
inspection and copying;
(2) Requests for admissions of the authenticity
of any relevant document or of the truth of any
relevant fact;
(3) Written interrogatories; and
(4) Depositions.
(b) For the purpose of this section and §§27.22
and 27.23, the term "documents" includes infor-
mation, documents, reports, answers, records, ac-
counts, papers, and other data and documentary
evidence. Nothing contained herein shall be inter-
preted to require the creation of a document.
(c) Unless mutually agreed to by the parties,
discovery is available only as ordered by the pre-
siding officer. The presiding officer shall regulate
the timing of discovery.
(d) Motions for discovery. (1) A party seeking
discovery may file a motion which shall be ac-
companied by a copy of the requested discovery,
or in the case of depositions, a summary of the
scope of the proposed deposition.
(2) Within ten days of service, a party may file
an opposition to the motion and/or a motion for
protective order as provided in §27.24.
-------
§27.22
(3) The presiding officer may grant a motion for
discovery only if he finds that the discovery
sought—
(i) Is necessary for the expeditious, fair, and
reasonable consideration of the issues;
(ii) Is not unduly costly or burdensome;
(iii) Will not unduly delay the proceeding; and
(iv) Does not seek privileged information.
(4) The burden of showing that discovery
should be allowed is on the party seeking discov-
ery.
(5) The presiding officer may grant discovery
subject to a protective order under §27.24.
(e) Depositions. (1) If a motion for deposition
is granted, the presiding officer shall issue a sub-
poena for the deponent, which may require the de-
ponent to produce documents. The subpoena shall
specify the time and place at which the deposition
will be held.
(2) The party seeking to depose shall serve the
subpoena in the manner prescribed in §27.8.
(3) The deponent may file a motion to quash
the subpoena or a motion for a protective order
within ten days of service.
(4) The party seeking to depose shall provide
for the taking of a verbatim transcript of the depo-
sition, which it shall make available to all other
parties for inspection and copying.
(f) Each party shall bear its own costs of dis-
covery.
§27.22 Exchange of witness lists, state-
ments, and exhibits.
(a) At least 15 days before the hearing or at
such other time as may be ordered by the presid-
ing officer, the parties shall exchange witness lists,
copies of prior statements of proposed witnesses,
and copies of proposed hearing exhibits, including
copies of any written statements that the party in-
tends to offer in lieu of live testimony in accord-
ance with § 27.33(b). At the time the above docu-
ments are exchanged, any party that intends to rely
on the transcript of deposition testimony in lieu of
live testimony at the hearing, if permitted by the
presiding officer, shall provide each party with a
copy of the specific pages of the transcript it in-
tends to introduce into evidence.
(b) If a party objects, the presiding officer shall
not admit into evidence the testimony of any wit-
ness whose name does not appear on the witness
list or any exhibit not provided to the opposing
party as provided above unless the presiding offi-
cer finds good cause for the failure or that there
is not prejudice to the objecting party.
(c) Unless another party objects within the time
set by the presiding officer, documents exchanged
in accordance with paragraph (a) of this section
shall be deemed to be authentic for the purpose of
admissibility at the hearing.
§27.23 Subpoenas for attendance at
hearing.
(a) A party wishing to procure the appearance
and testimony of any individual at the hearing
may request that the presiding officer issue a sub-
poena.
(b) A subpoena requiring the attendance and
testimony of an individual may also require the in-
dividual to produce documents at the hearing.
(c) A party seeking a subpoena shall file a writ-
ten request therefor not less than 15 days before
the date fixed for the hearing unless otherwise al-
lowed by the presiding officer for good cause
shown. Such request shall specify any documents
to be produced and shall designate the witnesses
and describe the address and location thereof with
sufficient particularity to permit such witnesses to
be found.
(d) The subpoena shall specify the time and
place at which the witness is to appear and any
documents the witness is to produce.
(e) The party seeking the subpoena shall serve
it in the manner prescribed in §27.8. A subpoena
on a party or upon an individual under the control
of a party may be served by first class mail.
(f) A party or the individual to whom the sub-
poena is directed may file a motion to quash the
subpoena within ten days after service or on or be-
fore the time specified in the subpoena for compli-
ance if it is less than ten days after service.
§27.24 Protective order.
(a) A party or a prospective witness or deponent
may file a motion for a protective order with re-
spect to discovery sought by a party or with re-
spect to the hearing, seeking to limit the availabil-
ity or disclosure of evidence.
(b) In issuing a protective order, the presiding
officer may make any order which justice requires
to protect a party or person from annoyance, em-
barrassment, oppression, or undue burden or ex-
pense, including one or more of the following:
(1) That the discovery not be had;
(2) That the discovery may be had only on
specified terms and conditions, including a des-
ignation of the time or place;
(3) That the discovery may be had only through
a method of discovery other than that requested;
(4) That certain matters not be inquired into, or
that the scope of discovery be limited to certain
matters;
(5) That discovery be conducted with no one
present except persons designated by the presiding
officer;
(6) That the contents of discovery or evidence
be sealed;
(7) That a deposition after being sealed be
opened only by order of the presiding officer;
-------
§27.29
(8) That a trade secret or other confidential re-
search, development, or commercial information,
or facts pertaining to any criminal investigation,
proceeding, or other administrative investigation
not be disclosed or be disclosed only in a des-
ignated way; or
(9) That the parties simultaneously file specified
documents or information enclosed in sealed enve-
lopes to be opened as directed by the presiding of-
ficer.
§27.25 Fees.
The party requesting a subpoena shall pay the
cost of the fees and mileage of any witness sub-
poenaed in the amounts that would be payable to
a witness in a proceeding in United States District
Court. A check for witness fees and mileage shall
accompany the subpoena when served, except that
when a subpoena is issued on behalf of the Au-
thority, a check for witness fees and mileage need
not accompany the subpoena.
§27.26 Form, filing and service of pa-
pers.
(a) Form. (1) Documents filed with the hearing
clerk shall include an original and two copies.
(2) The first page of every pleading and paper
filed in the proceeding shall contain a caption set-
ting forth the title of the action, the case number
assigned by the hearing clerk, and a designation of
the paper (e.g., motion to quash subpoena).
(3) Every pleading and paper shall be signed by,
and shall contain the address and telephone num-
ber of, the party or the person on whose behalf the
paper was filed, or his or her representative.
(4) Papers are considered filed when they are
mailed. Date of mailing may be established by a
certificate from the party or its representative or
by proof that the document was sent by certified
or registered mail.
(b) Service. A party filing a document with the
hearing clerk shall, at the time of filing, serve a
copy of such document on every other party. Serv-
ice upon any party of any document, other than
those required to be served as prescribed in § 27.8,
shall be made by delivering a copy or by placing
a copy of the document in the United States mail,
postage prepaid and addressed, to the party's last
known address. When a party is represented by a
representative, service shall be made upon such
representative in lieu of the actual party.
(c) Proof of service. A certificate of the individ-
ual serving the document by personal delivery or
by mail, setting forth the manner of service, shall
be proof of service.
§ 27.27 Computation of time.
(a) In computing any period of time under this
part or in an order issued thereunder, the time be-
gins with the day following the act, event, or de-
fault, and includes the last day of the period, un-
less it is a Saturday, Sunday, or legal holiday ob-
served by the Federal government, in which event
it includes the next business day.
(b) When the period of time allowed is less than
seven days, intermediate Saturdays, Sundays, and
legal holidays observed by the Federal government
shall be excluded from the computation.
(c) When a document has been served or issued
by placing it in the mail, an additional five days
will be added to the time permitted for any re-
sponse.
§27.28 Motions.
(a) Any application to the presiding officer for
an order or ruling shall be by motion. Motions
shall state the relief sought, the authority relied
upon, and the facts alleged, and shall be filed with
hearing clerk and served on all other parties.
(b) Except for motions made during a prehear-
ing conference or at the hearing, all motions shall
be in writing. The presiding officer may require
that oral motions be reduced to writing.
(c) Within 15 days after a written motion is
served, or such other time as may be fixed by the
presiding officer, any party may file a response to
such motion.
(d) The presiding officer may not grant a writ-
ten motion before the time for filing responses
thereto has expired, except upon consent of the
parties or following a hearing on the motion, but
may overrule or deny such motion without await-
ing a response.
(e) The presiding officer shall make a reason-
able effort to dispose of all outstanding motions
prior to the beginning of the hearing.
§27.29 Sanctions.
(a) The presiding officer may sanction a person,
including any party or representative for—
(1) Failing to comply with an order, rule, or
procedure governing the proceeding;
(2) Failing to prosecute or defend an action; or
(3) Engaging in other misconduct that interferes
with the speedy, orderly, or fair conduct of the
hearing.
(b) Any such sanction, including but not limited
to those listed in paragraphs (c), (d), and (e) of
this section, shall reasonably relate to the severity
and nature of the failure or misconduct.
(c) When a party fails to comply with an order,
including an order for taking a deposition, the pro-
duction of evidence within the party's control, or
a request for admission, the presiding officer
may—
(1) Draw an inference in favor of the requesting
party with regard to the information sought;
-------
§27.30
(2) In the case of requests for admission, deem
each matter of which an admission is requested to
be admitted;
(3) Prohibit the party failing to comply with
such order from introducing evidence concerning,
or otherwise relying upon, testimony relating to
the information sought; and
(4) Strike any part of the pleadings or other
submissions of the party failing to comply with
such request.
(d) If a party fails to prosecute or defend an ac-
tion under this part commenced by service of a
notice of hearing, the presiding officer may dis-
miss the action or may issue an initial decision
imposing penalties and assessments.
(e) The presiding officer may refuse to consider
any motion, request, response, brief or other docu-
ment which is not filed in a timely fashion.
§27.30 The hearing and burden of
proof.
(a) The presiding officer shall conduct a hearing
on the record in order to determine whether the
defendant is liable for a civil penalty or assess-
ment under §27.3 and, if so, the appropriate
amount of any such civil penalty or assessment
considering any aggravating or mitigating factors.
(b) The Authority shall prove defendant's liabil-
ity and any aggravating factors by a preponder-
ance of the evidence.
(c) The defendant shall prove any affirmative
defenses and any mitigating factors by a prepon-
derance of the evidence.
(d) The hearing shall be open to the public un-
less otherwise ordered by the presiding officer for
good cause shown.
§27.31 Determining the amount of
penalties and assessments.
(a) In determining an appropriate amount of
civil penalties and assessments, the presiding offi-
cer and the Environmental Appeals Board, upon
appeal, should evaluate any circumstances that
mitigate or aggravate the violation and should ar-
ticulate in their opinions the reasons that support
the penalties and assessments they impose. Be-
cause of the intangible costs of fraud, the expense
of investigating such conduct, and the need to
deter others who might be similarly tempted, ordi-
narily double damages and a significant civil pen-
alty should be imposed.
(b) Although not exhaustive, the following fac-
tors are among those that may influence the pre-
siding officer and the Environmental Appeals
Board in determining the amount of penalties and
assessments to impose with respect to the mis-
conduct (i.e., the false, fictitious, or fraudulent
claims or statements) charged in the complaint:
(1) The number of false, fictitious, or fraudulent
claims or statements;
(2) The time period over which such claims or
statements were made;
(3) The degree of the defendant's culpability
with respect to the misconduct;
(4) The amount of money or the value of the
property, services, or benefit falsely claimed;
(5) The value of the Government's actual loss
as a result of the misconduct, including foresee-
able consequential damages and the costs of inves-
tigation;
(6) The relationship of the amount imposed as
civil penalties to the amount of the Government's
loss;
(7) The potential or actual impact of the mis-
conduct upon national defense, public health or
safety, or public confidence in the management of
Government programs and operations, including
particularly the impact on the intended bene-
ficiaries of such programs;
(8) Whether the defendant has engaged in a pat-
tern of the same or similar misconduct;
(9) Whether the defendant attempted to conceal
the misconduct;
(10) The degree to which the defendant has in-
volved others in the misconduct or in concealing
it;
(11) Where the misconduct of employees or
agents is imputed to the defendant, the extent to
which the defendant's practices fostered or at-
tempted to preclude such misconduct;
(12) Whether the defendant cooperated in or ob-
structed an investigation of the misconduct;
(13) Whether the defendant assisted in identify-
ing and prosecuting other wrongdoers;
(14) The complexity of the program or trans-
action, and the degree of the defendant's sophis-
tication with respect to it, including the extent of
the defendant's prior participation in the program
or in similar transactions;
(15) Whether the defendant has been found, in
any criminal, civil, or administrative proceeding to
have engaged in similar misconduct or to have
dealt dishonestly with the Government of the Unit-
ed States or of a State, directly or indirectly; and
(16) The need to deter the defendant and others
from engaging in the same or similar misconduct.
(c) Nothing in this section shall be construed to
limit the presiding officer or the Environmental
Appeals Board from considering any other factors
that in any given case may mitigate or aggravate
the offense for which penalties and assessments
are imposed.
[45 FR 24363, Apr. 9, 1980, as amended at 57 FR 5327,
Feb. 13, 1992]
§ 27.32 Location of hearing.
(a) The hearing may be held—
10
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27.36
(1) In any judicial district of the United States
in which the defendant resides or transacts busi-
ness;
(2) In any judicial district of the United States
in which the claim or statement in issue was
made; or
(3) In such other place as may be agreed upon
by the defendant and the presiding officer.
(b) Each party shall have the opportunity to
present argument with respect to the location of
the hearing.
(c) The hearing shall be held at the place and
at the time ordered by the presiding officer.
§ 27.33 Witnesses.
(a) Except as provided in paragraph (b) of this
section, testimony at the hearing shall be given
orally by witnesses under oath or affirmation.
(b) At the discretion of the presiding officer,
testimony may be admitted in the form of a writ-
ten statement or deposition. Any such written
statement must be provided to all other parties
along with the last known address of such witness,
in a manner which allows sufficient time for other
parties to subpoena such witness for cross-exam-
ination at the hearing. Prior written statements of
witnesses proposed to testify at the hearing and
deposition transcripts shall be exchanged as pro-
vided in § 27.22(a).
(c) The presiding officer shall exercise reason-
able control over the mode and order of interrogat-
ing witnesses and presenting evidence so as to:
(1) Make the interrrogation and presentation ef-
fective for the ascertainment of the truth,
(2) Avoid needless consumption of time, and
(3) Protect witnesses from harassment or undue
embarrassment.
(d) The presiding officer shall permit the parties
to conduct such cross-examination as may be re-
quired for a full and true disclosure of the facts.
(e) At the discretion of the presiding officer, a
witness may be cross-examined on matters rel-
evant to the proceeding without regard to the
scope of his or her direct examination. To the ex-
tent permitted by the presiding officer, cross-ex-
amination on matters outside the scope of direct
examination shall be conducted in the manner of
direct examination and may proceed by leading
questions only if the witness is a hostile witness,
an adverse party, or a witness identified with an
adverse party.
(f) Upon motion of any party, the presiding offi-
cer shall order witnesses excluded so that they
cannot hear the testimony of other witnesses. This
rule does not authorize exclusion of—
(1) A party who is an individual;
(2) In the case of a party that is not an individ-
ual, an officer or empoyee of the party appearing
for the entity pro se or designated by the party's
representative; or
(3) an individual whose presence is shown by a
party to be essential to the presentation of its case,
including an individual employed by the Govern-
ment engaged in assisting the representative for
the Government.
§ 27.34 Evidence.
(a) The presiding officer shall determine the ad-
missibility of evidence.
(b) Except as provided in this part, the presiding
officer shall not be bound by the Federal Rules of
Evidence. However, the presiding officer may
apply the Federal Rules of Evidence when appro-
priate, e.g., to exclude unreliable evidence.
(c) The presiding officer shall exclude irrelevant
and immaterial evidence.
(d) Although relevant, evidence may be ex-
cluded if its probative value is substantially out-
weighed by the danger of unfair prejudice, confu-
sion of the issues, or by considerations of undue
delay or needless presentation of cumulative evi-
dence.
(e) Although relevant, evidence may be ex-
cluded if it is privileged under Federal law.
(f) Evidence concerning offers of compromise
or settlement shall be inadmissible to the extent
provided in Rule 408 of the Federal Rules of Evi-
dence.
(g) The presiding officer shall permit the parties
to introduce rebuttal witnesses and evidence.
(h) All documents and other evidence offered or
taken for the record shall be open to examination
by all parties, unless otherwise ordered by the pre-
siding officer pursuant to § 27.24.
§ 27.35 The record.
(a) The hearing will be recorded and tran-
scribed. Transcripts may be obtained following the
hearing from the hearing clerk at a cost not to ex-
ceed the actual cost of duplication.
(b) The transcript of testimony, exhibits and
other evidence admitted at the hearing, and all pa-
pers and requests filed in the proceeding constitute
the record for the decision by the presiding officer
and the Environmental Appeals Board.
(c) The record may be inspected and copied
(upon payment of a reasonable fee) by anyone, un-
less otherwise ordered by the presiding officer
pursuant to §27.24.
[45 FR 24363, Apr. 9, 1980, as amended at 57 FR 5327,
Feb. 13, 1992]
27.36 Post-hearing briefs.
The presiding officer may require the parties to
file post-hearing briefs. In any event, any party
may file a post-hearing brief. The presiding officer
11
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§27.37
shall fix the time for filing such briefs, not to ex-
ceed 60 days from the date the parties receive the
transcript of the hearing or, if applicable, the stip-
ulated record. Such briefs may be accompanied by
proposed findings of fact and conclusions of law.
The presiding officer may permit the parties to file
responsive briefs.
§ 27.37 Initial decision.
(a) The presiding officer shall issue an initial
decision based only on the record. The decision
shall contain findings of fact, conclusions of law,
and the amount of any penalties and assessments
imposed.
(b) The findings of fact shall include a finding
on each of the following issues:
(1) Whether the claims or statements identified
in the complaint, or any portions thereof, violate
§27.3;
(2) If the person is liable for penalties or assess-
ments, the appropriate amount of any such pen-
alties or assessments considering any mitigating or
aggravating factors that he or she finds in the case,
such as those described in §27.31.
(c) The presiding officer shall promptly serve
the initial decision on all parties within 90 days
after the time for submission of post-hearing briefs
and responsive briefs (if permitted) has expired.
The presiding officer shall at the same time serve
all parties with a statement describing the right of
any defendant determined to be liable for a civil
penalty or assessment to file a motion for recon-
sideration or a notice of appeal. If the presiding
officer fails to meet the deadline contained in this
paragraph, he or she shall notify the parties of the
reason for the delay and shall set a new deadline.
(d) Unless the initial decision of the presiding
officer is timely appealed to the Environmental
Appeals Board, or a motion for reconsideration of
the initial decision is timely filed, the initial deci-
sion shall constitute the final decision of the Envi-
ronmental Appeals Board and shall be final and
binding on the parties 30 days after it is issued by
the presiding officer.
[45 FR 24363, Apr. 9, 1980, as amended at 57 FR 5327,
Feb. 13, 1992]
§ 27.38 Reconsideration of initial deci-
sion.
(a) Except as provided in paragraph (d) of this
section, any party may file a motion for reconsid-
eration of the initial decision within 20 days of re-
ceipt of the initial decision. If service was made
by mail, receipt will be presumed to be five days
from the date of mailing in the absence of con-
trary proof.
(b) Every such motion must set forth the mat-
ters claimed to have been erroneously decided and
the nature of the alleged errors. Such motion shall
be accompanied by a supporting brief.
(c) Responses to such motions shall be allowed
only upon request of the presiding officer.
(d) No party may file a motion for reconsider-
ation of an initial decision that has been revised
in response to a previous motion for reconsider-
ation.
(e) The presiding officer may dispose of a mo-
tion for reconsideration by denying it or by issuing
a revised intial decision.
(f) If the presiding officer denies a motion for
reconsideration, the initial decision shall constitute
the final decision of the Environmental Appeals
Board and shall be final and binding on the parties
30 days after the presiding officer denies the mo-
tion, unless the initial decision is timely appealed
to the Environmental Appeals Board in accordance
with §27.39.
(g) If the presiding officer issued a revised ini-
tial decision, that decision shall constitute the final
decision of the Environmental Appeals Board and
shall be final and binding on the parties 30 days
after it is issued, unless it is timely appealed to the
Environmental Appeals Board in accordance with
§27.39.
[45 FR 24363, Apr. 9, 1980, as amended at 57 FR 5327,
Feb. 13, 1992]
§ 27.39 Appeal to authority head.
(a) Any defendant who has filed a timely an-
swer and who is determined in an initial decision
to be liable for a civil penalty or assessment may
appeal such decision to the Environmental Appeals
Board by filing a notice of appeal with the hearing
clerk in accordance with this section.
(b)(l) A notice of appeal may be filed at any
time within 30 days after the presiding officer is-
sues an initial decision. However, if another party
files a motion for reconsideration under §27.38,
consideration of the appeal shall be stayed auto-
matically pending resolution of the motion for re-
consideration.
(2) If a motion for reconsideration is timely
filed, a notice of appeal may be filed within 30
days after the presiding officer denies the motion
or issues a revised initial decision, whichever ap-
plies.
(3) The Environmental Appeals Board may ex-
tend the initial 30 day period for an additional 30
days if the defendant files a request for an exten-
sion within the initial 30 day period and shows
good cause.
(c) If the defendant filed a timely notice of ap-
peal, and the time for filing motions for reconsid-
eration under §27.38 has expired, the presiding of-
ficer shall forward the record of the proceeding to
the Environmental Appeals Board.
12
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§27.46
(d) A notice of appeal shall be accompanied by
a written brief specifying exceptions to the initial
decision and reasons supporting the exceptions.
(e) The representative for the Government may
file a brief in opposition to exceptions within 30
days of receiving the notice of appeal and accom-
panying brief.
(f) There is no right to appear personally before
the Environmental Appeals Board.
(g) There is no right to appeal any interlocutory
ruling by the presiding officer.
(h) In reviewing the initial decision, the Envi-
ronmental Appeals Board shall not consider any
objection that was not raised before the presiding
officer unless a demonstration is made of extraor-
dinary circumstances causing the failure to raise
the objection.
(i) If any party demonstrates to the satisfaction
of the Environmental Appeals Board that addi-
tional evidence not presented at such hearing is
material and that there were reasonable grounds
for the failure to present such evidence at such
hearing, the Environmental Appeals Board shall
remand the matter to the presiding officer for con-
sideration of such additional evidence.
(j) The Environmental Appeals Board may af-
firm, reduce, reverse, compromise, remand, or set-
tle any penalty or assessment, determined by the
presiding officer in any initial decision.
(k) The Environmental Appeals Board shall
promptly serve each party to the appeal with a
copy of the decision of the Environmental Appeals
Board and a statement describing the right of any
person determined to be liable for a civil penalty
or assessment to seek judicial review.
(1) Unless a petition for review is filed as pro-
vided in 31 U.S.C. 3805 after a defendant has ex-
hausted all administrative remedies under this part
and within 60 days after the date on which the En-
vironmental Appeals Board serves the defendant
with a copy of the Environmental Appeals Board's
decision, a determination that a defendant is liable
under § 27.3 is final and is not subject to judicial
review.
[45 FR 24363, Apr. 9, 1980, as amended at 57 FR 5327,
Feb. 13, 1992]
§27.40 Stay ordered by the Depart-
ment of Justice.
If at any time the Attorney General or an As-
sistant Attorney General designated by the Attor-
ney General transmits to the Environmental Ap-
peals Board a written finding that continuation of
the administrative process described in this part
with respect to a claim or statement may adversely
affect any pending or potential criminal or civil
action related to such claim or statement, the Envi-
ronmental Appeals Board shall stay the process
immediately. The Environmental Appeals Board
may order the process resumed only upon receipt
of the written authorization of the Attorney Gen-
eral.
[57 FR 5327, Feb. 13, 1992]
§27.41 Stay pending appeal.
(a) An initial decision is stayed automatically
pending disposition of a motion for reconsider-
ation or of an appeal to the Environmental Ap-
peals Board.
(b) No administrative stay is available following
a final decision of the Environmental Appeals
Board.
[57 FR 5327, Feb. 13, 1992]
§27.42 Judicial review.
Section 3805 of title 31, United States Code,
authorizes judicial review by an appropriate Unit-
ed States District Court of a final decision of the
Environmental Appeals Board imposing penalties
or assessments under this part and specifies the
procedures for such review.
[57 FR 5327, Feb. 13, 1992]
§27.43 Collection of civil penalties and
assessments.
Sections 3806 and 3808(b) of title 31, United
States Code, authorize actions for collection of
civil penalties and assessments imposed under this
part and specify the procedures for such actions.
§27.44 Right to administrative offset.
The amount of any penalty or assessment which
has become final, or for which a judgment has
been entered under §§27.42 or 27.43, or any
amount agreed upon in a compromise or settle-
ment under § 27.46, may be collected by adminis-
trative offset under 31 U.S.C. 3716, except that an
administrative offset may not be made under this
section against a refund of an overpayment of
Federal taxes, then or later owing by the United
States to the defendant.
§27.45 Deposit in Treasury of United
States.
All amounts collected pursuant to this part shall
be deposited as miscellaneous receipts in the
Treasury of the United States, except as provided
in 31 U.S.C. 3806(g).
§27.46 Compromise or settlement.
(a) Parties may make offers of compromise or
settlement at any time.
(b) The reviewing official has the exclusive au-
thority to compromise or settle a case under this
part at any time after the date on which the re-
viewing official is permitted to issue a complaint
13
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§27.47
and before the date on which the presiding officer
issues an initial decision.
(c) The Environmental Appeals Board has ex-
clusive authority to compromise or settle a case
under this part at any time after the date on which
the presiding officer issues an initial decision, ex-
cept during the pendency of any review under
§27.42 or during the pendency of any action to
collect penalties and assessments under §27.43.
(d) The Attorney General has exclusive author-
ity to compromise or settle a case under this part
during the pendency of any review under §27.42
or of any action to recover penalties and assess-
ments under 31 U.S.C. 3806.
(e) The investigating official may recommend
settlement terms to the reviewing official, the En-
vironmental Appeals Board, or the Attorney Gen-
eral, as appropriate. The reviewing official may
recommend settlement terms to the Environmental
Appeals Board or the Attorney General, as appro-
priate.
(f) Any compromise or settlement must be in
writing.
[45 FR 24363, Apr.
Feb. 13, 1992]
9, 1980, as amended at 57 FR 5327,
§27.47 Limitations.
(a) The notice of hearing with respect to a claim
or statement must be served in the manner speci-
fied in §27.8 within 6 years after the date on
which such claim or statement is made.
(b) If the defendant fails to file a timely answer,
service of a notice under §27.10(b) shall be
deemed a notice of hearing for purposes of this
section.
(c) The statute of limitations may be extended
by agreement of the parties.
§27.48 Delegated functions.
The Administrator delegates authority to the En-
vironmental Appeals Board to issue final decisions
in appeals filed under this part. An appeal directed
to the Administrator, rather than the Environ-
mental Appeals Board, will not be considered.
This delegation of authority to the Environmental
Appeals Board does not preclude the Environ-
mental Appeals Board from referring an appeal or
motion filed under this part to the Administrator
for decision when the Environmental Appeals
Board, in its descretion, deems it appropriate to do
so. When an appeal or motion is referred to the
Administrator, all parties shall be so notified and
the rules in this part referring to the Environ-
mental Appeals Board shall be interpreted as refer-
ring to the Administrator. If a case or motion is
referred to the Administrator by the Environmental
Appeals Board, the Administrator may consult
with any EPA employee concerning the matter,
provided such consultation does not violate the ex
parte contacts restrictions set forth in §§27.14 and
27.15 of this part.
[57 FR 5328, Feb. 13, 1992]
14
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PART 29—INTERGOVERNMENTAL
REVIEW OF ENVIRONMENTAL
PROTECTION AGENCY PRO-
GRAMS AND ACTIVITIES
Sec.
29.1 What is the purpose of these regulations?
29.2 What definitions apply to these regulations?
29.3 What programs and activities of the Environmental
Protection Agency are subject to these regulations?
29.4 What are the Administrator's general responsibil-
ities under the Order?
29.5 What is the Administrator's obligation with respect
to Federal interagency coordination?
29.6 What procedures apply to the selection of programs
and activities under these regulations?
29.7 How does the Administrator communicate with
State and local officials concerning EPA programs
and activities?
29.8 How does the Administrator provide States an op-
portunity to comment on proposed Federal financial
assistance and direct Federal development?
29.9 How does the Administrator receive and respond to
comments?
29.10 How does the Administrator make efforts to ac-
commodate intergovernmental concerns?
29.11 What are the Administrator's obligations in inter-
state situations?
29.12 How may a State simplify, consolidate, or sub-
stitute federally required State plans?
29.13 May the Administrator waive any provision of
these regulations?
AUTHORITY: E.O. 12372, July 14, 1982 (47 FR 30959),
as amended Apr. 8, 1983 (48 FR 15887); sec. 401 of the
Intergovernmental Cooperation Act of 1968 as amended
(31 U.S.C. 6506); sec. 204 of the Demonstration Cities
and Metropolitan Development Act of 1966, as amended
(42 U.S.C. 3334).
SOURCE: 48 FR 29300, June 24, 1983, unless otherwise
noted.
§ 29.1 What is the purpose of these reg-
ulations?
(a) The regulations in this part implement Exec-
utive Order 12372, "Intergovernmental Review of
Federal Programs," issued July 14, 1982, and
amended, on April 8, 1983. These regulations also
implement applicable provisions of section 401 of
the Intergovernmental Cooperation Act of 1968, as
amended and section 204 of the Demonstration
Cities and Metropolitan Development Act of 1966,
as amended.
(b) These regulations are intended to foster an
intergovernmental partnership and a strengthened
federalism by relying on state processes and on
state, areawide, regional and local coordination for
review of proposed Federal financial assistance
and direct Federal development.
(c) These regulations are intended to aid the in-
ternal management of the Environmental Protec-
tion Agency (EPA) and are not intended to create
any right or benefit enforceable at law by a party
against EPA or its officers.
§29.2 What definitions apply to these
regulations?
Administrator means the Administrator of the
U.S. Environmental Protection Agency or an offi-
cial or employee of the Agency acting for the Ad-
ministrator under a delegation of authority.
Agency means the U.S. Environmental Protec-
tion Agency (EPA). Order means Executive Order
12372, issued July 14, 1982, and amended April
8, 1983, and titled "Intergovernmental Review of
Federal Programs."
States means any of the 50 states, the District
of Columbia, the Commonwealth of Puerto Rico,
the Commonwealth of the Northern Mariana Is-
lands, Guam, American Samoa, the U.S. Virgin Is-
lands, or the Trust Territory of the Pacific Islands.
§29.3 What programs and activities of
the Environmental Protection
Agency are subject to these regula-
tions?
The Administrator publishes in the FEDERAL
REGISTER a list of the EPA programs and activi-
ties that are subject to these regulations and identi-
fies which of these are subject to the requirements
of section 204 of the Demonstration Cities and
Metropolitan Development Act.
§29.4 What are the Administrator's
general responsibilities under the
Order?
(a) The Administrator provides opportunities for
consultation by elected officials of those State and
local governments that would provide the non-
Federal funds for, or that would be directly af-
fected by, proposed Federal financial assistance
from, or direct Federal development by, the EPA.
(b) If a State adopts a process under the Order
to review and coordinate proposed Federal finan-
cial assistance and direct Federal development, the
Administrator to the extent permitted by law:
(1) Uses the State process to determine official
views of State and local elected officials;
(2) Communicates with State and local elected
officials as early in a program planning cycle as
is reasonably feasible to explain specific plans and
actions;
(3) Makes efforts to accommodate State and
local elected officials' concerns with proposed
Federal financial assistance and direct Federal de-
velopment that are communicated through the
State process;
(4) Allows the States to simplify and consoli-
date existing federally required State plan submis-
sions;
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§29.5
(5) Where State planning and budgeting systems
are sufficient and where permitted by law, encour-
ages the substitution of State plans for federally
required State plans;
(6) Seeks the coordination of views of affected
State and local elected officials in one State with
those of another State when proposed Federal fi-
nancial assistance or direct Federal development
has an impact on interstate metropolitan urban
centers or other interstate areas; and
(7) Supports State and local governments by
discouraging the reauthorization or creation of any
planning organization which is federally-funded,
which has a limited purpose, and which is not ade-
quately representative of, or accountable to, State
or local elected officials,
§29.5 What is the Administrator's obli-
gation with respect to Federal
interagency coordination?
The Administrator, to the extent practicable,
consults with and seeks advice from all other sub-
stantially affected Federal departments and agen-
cies in an effort to assure full coordination be-
tween such agencies and EPA regarding programs
and activities covered under these regulations.
§29.6 What procedures apply to the se-
lection of programs and activities
under these regulations?
(a) A State may select any program or activity
published in the FEDERAL REGISTER in accordance
with § 29.3 of this part for intergovernmental re-
view under these regulations. Each State, before
selecting programs and activities, shall consult
with local elected officials.
(b) Each State that adopts a process shall notify
the Administrator of EPA programs and activities
selected for that process.
(c) A State may notify the Administrator of
changes in its selections at any time. For each
change, the State shall submit an assurance to the
Administrator that the State has consulted with
local elected officials regarding the change. EPA
may establish deadlines by which States are re-
quired to inform the Administrator of changes in
their program selections.
(d) The Administrator uses a State's process as
soon as feasible, depending on individual pro-
grams and activities, after the Administrator is no-
tified of its selections.
§29.7 How does the Administrator
communicate with State and local
officials concerning the EPA pro-
grams and activities?
(a) For those programs and activities covered by
a State process under §29.6, the Administrator, to
the extent permitted by law:
(1) Uses the State process to determine views of
State and local elected officials; and
(2) Communicates with State and local elected
officials, through the State process, as early in a
program planning cycle as is reasonably feasible
to explain specific plans and actions.
(b) The Administrator provides notice of pro-
posed Federal financial assistance or direct Federal
development to directly affected State, areawide,
regional, and local entities in a State if:
(1) The State has not adopted a process under
the Order; or
(2) The assistance or development involves a
program or activity not selected for the State proc-
ess.
This notice may be published in the FEDERAL
REGISTER or issued by other means which EPA, in
its discretion deems appropriate.
§ 29.8 How does the Administrator pro-
vide States an opportunity to com-
ment on proposed Federal financial
assistance and direct Federal devel-
opment?
(a) Except in unusual circumstances, the Admin-
istrator gives State processes or directly affected
State, areawide, regional and local officials and
entities:
(1) At least 30 days from the date established
by the Administrator to comment on proposed
Federal financial assistance in the form of
noncompeting continuation awards; and
(2) At least 60 days from the date established
by the Administrator to comment on proposed di-
rect Federal development or Federal financial as-
sistance, other than noncompeting continuation
awards.
(b) This section also applies to comments in
cases in which the review, coordination, and com-
munication with the Environmental Protection
Agency have been delegated.
(c) Applicants for programs and activities sub-
ject to section 204 of the Demonstration Cities and
Metropolitan Development Act shall allow
areawide agencies a 60-day opportunity for review
and comment.
§ 29.9 How does the Administrator re-
ceive and respond to comments?
(a) The Administrator follows the procedures in
§29.10 if:
(1) A State office or official is designated to act
as a single point of contact between a State proc-
ess and all Federal agencies, and
(2) That office or official transmits a State proc-
ess recommendation for a program selected under
§29.6.
(b) The single point of contact is not obligated
to transmit comments from State, areawide, re-
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§29.13
gional or local officials and entities where there is
no State process recommendation. However, if a
State process recommendation is transmitted by a
single point of contact, all comments from State,
area-wide, regional, and local officials and entities
that differ from it must also be transmitted.
(c) If a State has not established a process, or
is unable to submit a State process recommenda-
tion, the State, areawide, regional and local offi-
cials and entities may submit comments directly
either to the applicant or to EPA.
(d) If a program or activity is not selected for
a State process, the State, areawide, regional and
local officials and entities may submit comments
either directly to the applicant or to EPA. In addi-
tion, if a State process recommendation for a
nonselected program or activity is transmitted to
EPA by the single point of contact, the Adminis-
trator follows the procedures of §29.10 of this
part.
(e) The Administrator considers comments
which do not constitute a State process rec-
ommendation submitted under these regulations
and for which the Administrator is not required to
apply the procedures of §29.10 of this part, when
such comments are provided by a single point of
contact, by the applicant, or directly to the Agency
by a commenting party.
§29.10 How does the Administrator
make efforts to accommodate inter-
governmental concerns?
(a) If a State process provides a State process
recommendation to the Agency through the State's
single point of contact, the Administrator either:
(1) Accepts the recommendation;
(2) reaches a mutually agreeable solution with
the State process; or
(3) Provides the single point of contact with
such written explanation of the decision, as the
Administrator, in his or her discretion, deems ap-
propriate. The Administrator may also supplement
the written explanation by providing the expla-
nation to the single point of contact by telephone,
other telecommunication, or other means.
(b) In any explanation under paragraph (a)(3) of
this section, the Administrator informs the single
point of contact that:
(1) EPA will not implement its decision for at
least ten days after the single point of contact re-
ceives the explanation; or
(2) The Administrator has reviewed the decision
and determined that, because of unusual cir-
cumstances, the waiting period of at least ten days
is not feasible.
(c) For purposes of computing the waiting pe-
riod under paragraph (b)(l) of this section, a sin-
gle point of contact is presumed to have received
written notification 5 days after the date of mail-
ing of such notification.
§ 29.11 What are the Administrator's
obligations in interstate situations?
(a) The Administrator is responsible for:
(1) Identifying proposed Federal financial assist-
ance and direct Federal development that have an
impact on interstate areas;
(2) Notifying appropriate officials and entities in
States which have adopted a process and selected
an EPA program or activity.
(3) Making efforts to identify and notify the af-
fected State, areawide, regional, and local officials
and entities in those States that do not adopt a
process under the Order or do not select an EPA
program or activity;
(4) Responding in accordance with §29.10 of
this part to a recommendation received from a
designated areawide agency transmitted by a sin-
gle point of contact, in cases in which the review,
coordination, and communication with EPA were
delegated.
(b) The Administrator uses the procedures in
§29.10 if a State process provides a State process
recommendation to the Agency through a single
point of contact.
§29.12 How may a State simplify, con-
solidate, or substitute federally re-
quired State plans?
(a) As used in this section:
(1) Simplify means that a State may develop its
own format, choose its own submission date, and
select the planning period for a State plan.
(2) Consolidate means that a State may meet
statutory and regulatory requirements by combin-
ing two or more plans into one document and that
the State can select the format, submission date,
and planning period for the consolidated plan.
(3) Substitute means that a State may use a plan
or other document that it has developed for its
own purposes to meet Federal requirements.
(b) If not inconsistent with law, a State may de-
cide to try to simplify, consolidate, or substitute
federally required State plans without prior ap-
proval by the Administrator.
(c) The Administrator reviews each State plan
that a State has simplified, consolidated, or sub-
stituted and accepts the plan only if its contents
meet Federal requirements.
§29.13 May the Administrator waive
any provision of these regulations?
In an emergency, the Administrator may waive
any provision of these regulations.
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PART 100—[RESERVED]
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PART 104—PUBLIC HEARINGS ON
EFFLUENT STANDARDS FOR TOXIC
POLLUTANTS
Sec.
104.1 Applicability.
104.2 Definitions.
104.3 Notice of hearing; objection; public comment.
104.4 Statement of basis and purpose.
104.5 Docket and record.
104.6 Designation of Presiding Officer.
104.7 Powers of Presiding Officer.
104.8 Prehearing conferences.
104.9 Admission of evidence.
104.10 Hearing procedures.
104.11 Briefs and findings of fact.
104.12 Certification of record.
104.13 Interlocutory and post-hearing review of rulings
of the Presiding Officer; motions.
104.14 Tentative and final decision by the Adminis-
trator.
104.15 Promulgation of standards.
104.16 Filing and time.
AUTHORITY: Sees. 501 and 307(a) of the Federal Water
Pollution Control Act, as amended (33 U.S.C. 1251 et
seq., Pub. L. 92-500, 86 Stat. 816).
SOURCE: 41 FR 17902, Apr. 29, 1976, unless otherwise
noted.
§104.1 Applicability.
This part shall be applicable to hearings re-
quired by statute to be held in connection with the
establishment of toxic pollutant effluent standards
under section 307(a) of the Act.
§104.2 Definitions.
As used in this part, the term:
(a) Act means the Federal Water Pollution Con-
trol Act, as amended, 33 U.S.C. 1251 et seq., Pub-
lic Law 92-500, 86 Stat. 816.
(b) Administrator means the Administrator of
the Environmental Protection Agency, or any em-
ployee of the Agency to whom the Administrator
may by order delegate his authority to carry out
his functions under section 307(a) of the Act, or
any person who shall by operation of law be au-
thorized to carry out such functions.
(c) Agency means the Environmental Protection
Agency.
(d) Hearing Clerk means the Hearing Clerk,
U.S. Environmental Protection Agency, 401 M
Street SW., Washington, DC 20460.
(e) Party means the Environmental Protection
Agency as the proponent of an effluent standard or
standards, and any person who files an objection
pursuant to § 104.3 hereof.
(f) Person means an individual, corporation,
partnership, association, state, municipality or
other political subdivision of a state, or any inter-
state body.
(g) Effluent standard means any effluent stand-
ard or limitation, which may include a prohibition
of any discharge, established or proposed to be es-
tablished for any toxic pollutant under section
307(a) of the Act.
(h) Presiding Officer means the Chief Adminis-
trative Law Judge of the Agency or a person des-
ignated by the Chief Administrative Law Judge or
by the Administrator to preside at a hearing under
this part, in accordance with § 104.6 hereof.
§ 104.3 Notice of hearing; objection;
public comment.
(a) Notice of hearing. Whenever the Adminis-
trator publishes any proposed effluent standard, he
shall simultaneously publish a notice of a public
hearing to be held within thirty days following the
date of publication of the proposed standard. Any
person who has any objection to a proposed stand-
ard may file with the hearing clerk a concise state-
ment of any such objection. No person may par-
ticipate in the hearing on the proposed toxic pol-
lutant effluent standards unless the hearing clerk
has received within 25 days of the publication of
the notice of the proposed standards a statement of
objection as herein described. In exceptional cir-
cumstances and for good cause shown the Presid-
ing Officer may allow an objection to be filed
after the filing deadline prescribed in the preced-
ing sentence, which good cause must include at a
minimum lack of actual notice on the part of the
objector or any representative of such objector of
the proposed standards despite his exercise of due
diligence, so long as such later filing will not
cause undue delay in the proceedings or prejudice
to any of the parties.
(b) Objections. Any objection to a proposed
standard which is filed pursuant to paragraph (a)
of this section shall meet the following require-
ments:
(1) It shall be filed in triplicate with the hearing
clerk within the time prescribed in paragraph (a)
of this section;
(2) It shall state concisely and with particularity
each portion of the proposed standard to which
objection is taken; to the greatest extent feasible it
shall state the basis for such objection;
(3) To the greatest extent feasible it shall (i)
state specifically the objector's proposed modifica-
tion to any such standard proposed by the Agency
to which objection is taken, (ii) set forth the rea-
sons why such modification is sought, and (iii)
identify and describe the scientific or other basis
for such proposed modification, including ref-
erence to any pertinent scientific data or authority
in support thereof.
Any objection which fails to comply with the fore-
going provisions shall not be accepted for filing.
1
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§104.4
The Presiding Officer shall promptly notify any
person whose objection is not accepted for any of
the reasons set forth in this section, stating the rea-
sons therefor.
(c) Data in support of objection or modification.
In the event that the time prescribed for filing ob-
jections pursuant to paragraphs (a) and (b) of this
section is insufficient to permit an objecting party
to fully set forth with such objection the basis
therefor together with the information and data
specified in paragraph (b) (3) of this section, he
may so state at the time of the filing of such ob-
jection, and file a more complete statement of
such basis, information, and data (hereinafter re-
ferred to as "supplemental data") within the time
prescribed by this paragraph (c). The supplemental
data herein described shall be filed not later than
40 days following publication of the proposed ef-
fluent standards.
(d) Public comment. The notice required under
paragraph (a) of this section shall also provide for
the submission to the Agency of written comments
on the proposed rulemaking by interested persons
not filing objections pursuant to this section as
hereinabove described, and hence not participating
in the hearing as parties. The notice shall fix a
time deadline for the submission of such com-
ments which shall be not later than the date set for
commencement of the hearing. Such comments
shall be received in evidence at the commence-
ment of the hearing. The Administrator in making
any decision based upon the record shall take into
account the unavailability of cross-examination in
determining the weight to be accorded such com-
ments.
(e) Promulgation in absence of objection. If no
objection is filed pursuant to this section, then the
Administrator shall promulgate the final standards
on the basis of the Agency's statement of basis
and purpose and any public comments received
pursuant to paragraph (d) of this section.
§ 104.4 Statement of basis and purpose.
Whenever the Administrator publishes a pro-
posed effluent standard, the notice thereof pub-
lished in the FEDERAL REGISTER shall include a
statement of the basis and purpose of the standard
or a summary thereof. This statement shall in-
clude:
(a) The purpose of the proposed standard;
(b) An explanation of how the proposed stand-
ard was derived;
(c) Scientific and technical data and studies sup-
porting the proposed standard or references thereto
if the materials are published or otherwise readily
available; and
(d) Such other information as may be reason-
ably required to set forth fully the basis of the
standard.
Where the notice of the proposed rulemaking sum-
marizes the full statement of basis and purpose, or
incorporates documents by reference, the docu-
ments thus summarized or incorporated by ref-
erence shall thereupon be made available by the
Agency for inspection and copying by any inter-
ested person.
§ 104.5 Docket and record.
Whenever the Administrator publishes a notice
of hearing under this part, the hearing clerk shall
promptly establish a docket for the hearing. The
docket shall include all written objections filed by
any party, any public comments received pursuant
to § 104.3(d), a verbatim transcript of the hearing,
the statement of basis and purpose required by
§ 104.4, and any supporting documents referred to
therein, and other documents of exhibits that may
be received in evidence or marked for identifica-
tion by or at the direction of the Presiding Officer,
or filed by any party in connection with the hear-
ing. Copies of documents in the docket shall be
available to any person upon payment to the
Agency of such charges as the Agency may pre-
scribe to cover the costs of duplication. The mate-
rials contained in the docket shall constitute the
record.
§ 104.6 Designation of Presiding Offi-
cer.
The Chief Administrative Law Judge of the
Agency may preside personally at any hearing
under this part, or he may designate another Ad-
ministrative Law Judge as Presiding Officer for
the hearing. In the event of the unavailability of
any such Administrative Law Judge, the Adminis-
trator may designate a Presiding Officer. No per-
son who has any personal pecuniary interest in the
outcome of a proceeding under this part, or who
has participated in the development or enforce-
ment of any standard or proposed standard at issue
in a proceeding hereunder, shall serve as Presiding
Officer in such proceeding.
§ 104.7 Powers of Presiding Officer.
The Presiding Officer shall have the duty to
conduct a fair hearing within the time constraints
imposed by section 307(a) of the Act. He shall
take all necessary action to avoid delay and to
maintain order. He shall have all powers necessary
to these ends, including but not limited to the
power to:
(a) Rule upon motions and requests;
(b) Change the time and place of the hearing,
and adjourn the hearing from time to time or from
place to place;
(c) Examine and cross-examine witnesses;
(d) Admit or exclude evidence; and
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§104.10
(e) Require any part or all of the evidence to be
submitted in writing and by a certain date.
§ 104.8 Prehearing conferences.
Prehearing conferences are encouraged for the
purposes of simplification of issues, identification
and scheduling of evidence and witnesses, the es-
tablishment of an orderly framework for the pro-
ceedings, the expediting of the hearing, and such
other purposes of a similar nature as may be ap-
propriate.
(a) The Presiding Officer on his own motion
may, and at the request of any party made within
20 days of the proposal of standards hereunder
shall, direct all parties to appear at a specified
time and place for an initial hearing session in the
nature of a prehearing conference. Matters taken
up at the conference may include, without limita-
tion:
(1) Consideration and simplification of any is-
sues of law or fact;
(2) Identification, advance submission, marking
for identification, consideration of any objections
to admission, and admission of documentary evi-
dence;
(3) Possible stipulations of fact;
(4) The identification of each witness expected
to be called by each party, and the nature and sub-
stance of his expected testimony;
(5) Scheduling of witnesses where practicable,
and limitation of the number of witnesses where
appropriate in order to avoid delay or repetition;
(6) If desirable, the segregation of the hearing
into separate segments for different provisions of
the proposed effluent standards and the establish-
ment of separate service lists;
(7) Encouragement of objecting parties to agree
upon and designate lead counsel for objectors with
common interests so as to avoid repetitious ques-
tioning of witnesses.
(b) The Presiding Officer may, following a pre-
hearing conference, issue an order setting forth the
agreements reached by the parties or representa-
tives, the schedule of witnesses, and a statement of
issues for the hearing. In addition such order may
direct the parties to file and serve copies of docu-
ments or materials, file and serve lists of witnesses
which may include a short summary of the ex-
pected testimony of each and, in the case of an ex-
pert witness, his curriculum vitae, and may contain
such other directions as may be appropriate to fa-
cilitate the proceedings.
§ 104.9 Admission of evidence.
(a) Where the Presiding Officer has directed
identification of witnesses and production of docu-
mentation evidence by a certain date, the Presiding
Officer may exclude any such evidence, or refuse
to allow any witness to testify, when the witness
was not identified or the document was not served
by the time set by the Presiding Officer. Any such
direction with respect to a party's case in chief
shall not preclude the use of such evidence or tes-
timony on rebuttal or response, or upon a showing
satisfactory to the Presiding Officer that good
cause existed for failure to serve testimony or a
document or identify a witness by the time re-
quired. The Presiding Officer may require direct
testimony to be in writing under oath and served
by a certain date, and may exclude testimony not
so served.
(b) At the first prehearing conference, or at an-
other time before the beginning of the taking of
oral testimony to be set by the Presiding Officer,
the statement of basis and purpose, together with
any publications or reference materials cited there-
in, except where excluded by stipulation, shall be
received in evidence.
(c) The Presiding Officer may exclude evidence
which is immaterial, irrelevant, unduly repetitious
or cumulative, or would involve undue delay, or
which, if hearsay, is not of the sort upon which re-
sponsible persons are accustomed to rely.
(d) If relevant and material evidence is con-
tained in a report or document containing immate-
rial or irrelevant matter, such immaterial or irrele-
vant matter may be excluded.
(e) Whenever written testimony or a document
or object is excluded from evidence by the Presid-
ing Officer, it shall at the request of the proponent
be marked for identification. Where oral testimony
is permitted by the Presiding Officer, but the Pre-
siding Officer excludes particular oral testimony,
the party offering such testimony may make a
brief offer of proof.
(f) Any relevant and material documentary evi-
dence, including but not limited to affidavits, pub-
lished articles, and official documents, regardless
of the availability of the affiant or author for
cross-examination, may be admitted in evidence,
subject to the provisions of paragraphs (a), (c),
and (d) of this section. The availability or
nonavailability of cross-examination shall be con-
sidered as affecting the weight to be accorded
such evidence in any decision based upon the
record.
(g) Official notice may be taken by the Presid-
ing Officer or the Administrator of any matter
which could be judicially noticed in the United
States District Courts, and of other facts within the
specialized knowledge and experience of the
Agency. Opposing parties shall be given adequate
opportunity to show the contrary.
§ 104.10 Hearing procedures.
(a) Following the admission in evidence of the
materials described in § 104.9(b), the Agency shall
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§104.11
have the right at the commencement of the hearing
to supplement that evidence or to introduce addi-
tional relevant evidence. Thereafter the evidence
of each objector shall be presented in support of
its objection and any proposed modification. The
Agency staff shall then be given an opportunity to
rebut or respond to the objectors' presentation, in-
cluding at its option the introduction of evidence
which tends to support a standard or standards
other than as set forth in the Agency's own ini-
tially proposed standards. In the event that evi-
dence which tends to support such other standard
or standards is offered and received in evidence,
then the objectors may thereafter rebut or respond
to any such new evidence.
(b) The burden of proof as to any modification
of any standard proposed by the Agency shall be
upon the party who advocates such modification to
show that the proposed modification is justified
based upon a preponderance of the evidence.
(c) Where necessary in order to prevent undue
prolongation of the hearing, or to comply with
time limitations set forth in the Act, the Presiding
Officer may limit the number of witnesses who
may testify, and the scope and extent of cross-ex-
amination.
(d) A verbatim transcript of the hearing shall be
maintained and shall constitute a part of the
record.
(e) If a party objects to the admission or rejec-
tion of any evidence or to any other ruling of the
Presiding Officer during the hearing, he shall state
briefly the grounds of such objection. With respect
to any ruling on evidence, it shall not be necessary
for any party to claim an exception in order to
preserve any right of subsequent review.
(f) Any party may at any time withdraw his ob-
jection to a proposed effluent standard.
§ 104.11 Briefs and findings of fact.
At the conclusion of the hearing, the Presiding
Officer shall set a schedule for the submission by
the parties of briefs and proposed findings of fact
and conclusions. In establishing the aforesaid time
schedule, the Presiding Officer shall consider the
time constraints placed upon the parties and the
Administrator by the statutory deadlines.
§104.12 Certification of record.
As soon as possible after the hearing, the Pre-
siding Officer shall transmit to the hearing clerk
the transcript of the testimony and exhibits intro-
duced in the hearing. The Presiding Officer shall
attach to the original transcript his certificate stat-
ing that, to the best of his knowledge and belief,
the transcript is a true transcript of the testimony
given at the hearing except in such particulars as
he shall specify, and that the exhibits transmitted
are all the exhibits as introduced at the hearing
with such exceptions as he shall specify.
§104.13 Interlocutory and post-hear-
ing review of rulings of the
Presiding Officer; motions.
(a) The Presiding Officer may certify a ruling
for interlocutory review by the Administrator
where a party so requests and the Presiding Offi-
cer concludes that (1) the ruling from which re-
view is sought involves an important question as
to which there is substantial ground for difference
of opinion, and (2) either (i) a subsequent reversal
of his ruling would be likely to result in substan-
tial delay or expense if left to the conclusion of
the proceedings, or (ii) a ruling on the question by
the Administrator would be of material assistance
in expediting the hearing. The certificate shall be
in writing and shall specify the material relevant
to the ruling certified. If the Administrator deter-
mines that interlocutory review is not warranted,
he may decline to consider the ruling which has
been certified.
(b) Where the Presiding Officer declines to cer-
tify a ruling the party who had requested certifi-
cation may apply to the Administrator for inter-
locutory review, or the Administrator may on his
own motion direct that any matter be submitted to
him for review, subject to the standards for review
set forth in paragraph (a) of this section. An appli-
cation for review shall be in writing and shall
briefly state the grounds relied on. If the Adminis-
trator takes no action with respect to such applica-
tion for interlocutory review within 15 days of its
filing, such application shall be deemed to have
been denied.
(c) Unless otherwise ordered by the Presiding
Officer or the Administrator, the hearing shall con-
tinue pending consideration by the Administrator
of any ruling or request for interlocutory review.
(d) Unless otherwise ordered by the Presiding
Officer or the Administrator, briefs in response to
any application for interlocutory review may be
filed by any party within five days of the filing of
the application for review.
(e) Failure to request or obtain interlocutory re-
view does not waive the rights of any party to
complain of a ruling following completion of the
hearing. Within five days following the close of a
hearing under this part, any party may apply to the
Administrator for post-hearing review of any pro-
cedural ruling, or any ruling made by the Presid-
ing Officer concerning the admission or exclusion
of evidence to which timely objection was made.
Within seven days following the filing of any such
application any other party may file a brief in re-
sponse thereto.
(f) If the Administrator on review under para-
graph (e) of this section determines that evidence
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§104.16
was improperly excluded, he may order its admis-
sion without remand for further proceedings, or
may remand with such instructions as he deems
appropriate concerning cross-examination, or op-
portunity for any party to submit further evidence,
with respect to such evidence as he directs should
be admitted. In making his determination whether
to remand, the Administrator shall consider wheth-
er the statutory time restraints permit a remand,
and whether it would be constructive to allow
cross-examination or further evidence with respect
to the newly admitted evidence. If evidence is ad-
mitted without cross-examination, the Adminis-
trator shall consider the lack of opportunity for
cross-examination in determining the weight to be
given such evidence.
(g) Motions shall be brief, in writing, and may
be filed at any time following the publication of
the proposed effluent standards, unless otherwise
ordered by the Presiding Officer or the Adminis-
trator. Unless otherwise ordered or provided in
these rules, responses to motions may be filed
within seven days of the actual filing of the mo-
tion with the hearing clerk.
§104.14 Tentative and final decision
by the Administrator.
(a) As soon as practicable following the certifi-
cation of the record and the filing by the parties
of briefs and proposed findings of fact and conclu-
sions under §104.11, the Administrator, with such
staff assistance as he deems necessary and appro-
priate, shall review the entire record and prepare
and file a tentative decision based thereon. The
tentative decision shall include findings of fact and
conclusions, and shall be filed with the hearing
clerk who shall at once transmit a copy thereof to
each party who participated at the hearing, or his
attorney or other representative.
(b) Upon filing of the tentative decision, the
Administrator may allow a reasonable time for the
parties to file with him any exceptions to the
tenative decision, a brief in support of such excep-
tions containing appropriate references to the
record, and any proposed changes in the tentative
decision. Such materials shall, upon submission,
become part of the record. As soon as practicable
after the filing thereof the Administrator shall pre-
pare and file a final decision, copies of which
shall be transmitted to the parties or their rep-
resentatives in the manner prescribed in paragraph
(a) of this section.
(c) In the event that the Administrator deter-
mines that due and timely execution of his func-
tions, including compliance with time limitations
established by law, imperatively and unavoidably
so requires, he may omit the preparation and filing
of the tentative decision and related procedures set
forth in paragraph (b) of this section, and shall in-
stead prepare and file a final decision, copies of
which shall be transmitted to the parties or their
representatives in the manner prescribed in para-
graph (a) of this section.
(d) Any decision rendered by the Administrator
pursuant to this section shall include a statement
of his findings and conclusions, and the reasons
and basis therefor, and shall indicate the toxic pol-
lutant effluent standard or standards which the Ad-
ministrator is promulgating or intends to promul-
gate based thereon.
§ 104.15 Promulgation of standards.
Upon consideration of the record, at the time of
his final decision the Administrator shall deter-
mine whether the proposed effluent standard or
standards should be promulgated as proposed, or
whether any modification thereof is justified based
upon a preponderance of the evidence adduced at
the hearing, regardless of whether or not such
modification was actually proposed by any object-
ing party. If he determines that a modification is
not justified, he shall promulgate the standard or
standards as proposed. If he determines that a
modification is justified, he shall promulgate a
standard or standards as so modified.
§ 104.16 Filing and time.
(a) All documents or papers required or author-
ized by the foregoing provisions of this part in-
cluding, but not limited to, motions, applications
for review, and briefs, shall be filed in duplicate
with the hearing clerk, except as otherwise ex-
pressly provided in these rules. Any document or
paper so required or authorized to be filed with
the hearing clerk, if it is filed during the course
of the hearing, shall be also filed with the Presid-
ing Officer. A copy of each document or paper
filed by any party with the Presiding Officer, with
the hearing clerk, or with the Administrator shall
be served upon all other parties, except to the ex-
tent that the list of parties to be so served may be
modified by order of the Presiding Officer, and
each such document or paper shall be accom-
panied by a certificate of such service.
(b) A party may be represented in any proceed-
ing under this part by an attorney or other author-
ized representative. When any document or paper
is required under these rules to be served upon a
party such service shall be made upon such attor-
ney or other representative.
(c) Except where these rules or an order of the
Presiding Officer require receipt of a document by
a certain date, any document or paper required or
authorized to be filed by this part shall be deemed
to be filed when postmarked, or in the case of pa-
pers delivered other than by mail, when received
by the hearing clerk.
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§104.16
(d) Sundays and legal holidays shall be included time expires on a Sunday or legal holiday, such
in computing the time allowed for the filing of period shall be extended to include the next fol-
any document or paper, provided, that when such lowing business day.
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PART 108—EMPLOYEE PROTECTION
HEARINGS
Sec.
108.1 Applicability.
108.2 Definitions.
108.3 Request for investigation.
108.4 Investigation by Regional Administrator.
108.5 Procedure.
108.6 Recommendations.
108.7 Hearing before Administrator.
AUTHORITY: Sec. 507(e), Pub. L. 92-500, 86 Stat. 816
(33 U.S.C. 1251 et seq.).
SOURCE: 39 FR 15398, May 3, 1974, unless otherwise
noted.
§108.1 Applicability.
This part shall be applicable to investigations
and hearings required by section 507(e) of the
Federal Water Pollution Control Act, as amended,
33 U.S.C. 1251 et seq. (Pub. L. 92-500).
§ 108.2 Definitions.
As used in this part, the term:
(a) Act means the Federal Water Pollution Con-
trol Act, as amended;
(b) Effluent limitation means any effluent limita-
tion which is established as a condition of a per-
mit issued or proposed to be issued by a State or
by the Environmental Protection Agency pursuant
to section 402 of the Act; any toxic or
pretreatment effluent standard established under
section 307 of the Act; any standard of perform-
ance established under section 306 of the Act; and
any effluent limitation established under section
302, section 316, or section 318 of the Act.
(c) Order means any order issued by the Ad-
ministrator under section 309 of the Act; any order
issued by a State to secure compliance with a per-
mit, or condition thereof, issued under a program
approved pursuant to section 402 of the Act; or
any order issued by a court in an action brought
pursuant to section 309 or section 505 of the Act.
(d) Party means an employee filing a request
under § 108.3, any employee similarly situated, the
employer of any such employee, and the Regional
Administrator or his designee.
(e) Administrator or Regional Administrator
means the Administrator or a Regional Adminis-
trator of the Environmental Protection Agency.
§ 108.3 Request for investigation.
Any employee who is discharged or laid-off,
threatened with discharge or lay-off, or otherwise
discriminated against by any person because of the
alleged results of any effluent limitation or order
issued under the Act, or any representative of such
employee, may submit a request for an investiga-
tion under this part to the Regional Administrator
of the region in which such discrimination is al-
leged to have occurred.
§108.4 Investigation by Regional Ad-
ministrator.
Upon receipt of any request meeting the re-
quirements of § 108.3, the Regional Administrator
shall conduct a full investigation of the matter, in
order to determine whether the request may be re-
lated to an effluent limitation or order under the
Act. Following the investigation, the Regional Ad-
ministrator shall notify the employee requesting
the investigation (or the employee's representative)
and the employer of such employee, in writing, of
his preliminary findings and conclusions. The em-
ployee, the representative of such employee, or the
employer may within fifteen days following re-
ceipt of the preliminary findings and conclusions
of the Regional Administrator request a hearing
under this part. Upon receipt of such a request, the
Regional Administrator, with the concurrence of
the Chief Administrative Law Judge, shall publish
notice of a hearing to be held not less than 30
days following the date of such publication where
he determines that there are factual issues concern-
ing the existence of the alleged discrimination or
its relationship to an effluent limitation or order
under the Act. The notice shall specify a date be-
fore which any party (or representative of such
party) may submit a request to appear.
§ 108.5 Procedure.
Any hearing held pursuant to this part shall be
of record and shall be conducted according to the
requirements of 5 U.S.C. 554. The Administrative
Law Judge shall conduct the hearing in an orderly
and expeditious manner. By agreement of the par-
ties, he may dismiss the hearing. The Administra-
tive Law Judge, on his own motion, or at the re-
quest of any party, shall have the power to hold
prehearing conferences, to issue subpoenas for the
attendance and testimony of witnesses and the pro-
duction of relevant papers, books, and documents,
and he may administer oaths. The Regional Ad-
ministrator, and any party submitting a request
pursuant to § 108.3 or § 108.4, or counsel or other
representative of such party or the Regional Ad-
ministrator, may appear and offer evidence at the
hearing.
§ 108.6 Recommendations.
At the conclusion of any hearing under this part,
the Administrative Law Judge shall, based on the
record, issue tentative findings of fact and rec-
ommendations concerning the alleged discrimina-
tion, and shall submit such tentative findings and
recommendations to the Administrator. The Ad-
ministrator shall adopt or modify the findings and
recommendations of the Administrative Law
-------
§108.7
Judge, and shall make copies of such findings and § 108.7 Hearing before Administrator.
recommendations available to the complaining em- At his optiollj the Administrator may exercise
ployee, the employer, and the public. any powers of an Administrative Law Judge with
respect to hearings under this part.
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PART 109— CRITERIA FOR STATE,
LOCAL AND REGIONAL OIL RE-
MOVAL CONTINGENCY PLANS
Sec.
109.1 Applicability.
109.2 Definitions.
109.3 Purpose and scope.
109.4 Relationship to Federal response actions.
109.5 Development and implementation criteria for
State, local and regional oil removal contingency
plans.
109.6 Coordination.
AUTHORITY: Sec. 11Q)(1)(B), 84 Stat. 96, 33 U.S.C.
SOURCE: 36 FR 22485, Nov. 25, 1971, unless otherwise
noted.
§109.1 Applicability.
The criteria in this part are provided to assist
State, local and regional agencies in the develop-
ment of oil removal contingency plans for the in-
land navigable waters of the United States and all
areas other than the high seas, coastal and contig-
uous zone waters, coastal and Great Lakes ports
and harbors and such other areas as may be agreed
upon between the Environmental Protection Agen-
cy and the Department of Transportation in ac-
cordance with section ll(j)(l)(B) of the Federal
Act, Executive Order No. 11548 dated July 20,
1970 (35 FR 11677) and §306.2 of the National
Oil and Hazardous Materials Pollution Contin-
gency Plan (35 FR 8511).
§109.2 Definitions.
As used in these guidelines, the following terms
shall have the meaning indicated below:
(a) Oil means oil of any kind or in any form,
including, but not limited to, petroleum, fuel oil,
sludge, oil refuse, and oil mixed with wastes other
than dredged spoil.
(b) Discharge includes, but is not limited to,
any spilling, leaking, pumping, pouring, emitting,
emptying, or dumping.
(c) Remove or removal refers to the removal of
the oil from the water and shorelines or the taking
of such other actions as may be necessary to mini-
mize or mitigate damage to the public health or
welfare, including, but not limited to, fish, shell-
fish, wildlife, and public and private property,
shorelines, and beaches.
(d) Major disaster means any hurricane, tor-
nado, storm, flood, high water, wind-driven water,
tidal wave, earthquake, drought, fire, or other ca-
tastrophe in any part of the United States which,
in the determination of the President, is or threat-
ens to become of sufficient severity and magnitude
to warrant disaster assistance by the Federal Gov-
ernment to supplement the efforts and available re-
sources of States and local governments and relief
organizations in alleviating the damage, loss, hard-
ship, or suffering caused thereby.
(e) United States means the States, the District
of Columbia, the Commonwealth of Puerto Rico,
the Canal Zone, Guam, American Samoa, the Vir-
gin Islands, and the Trust Territory of the Pacific
Islands.
(f) Federal Act means the Federal Water Pollu-
tion Control Act, as amended, 33 U.S.C. 1151, et
seq.
§ 109.3 Purpose and scope.
The guidelines in this part establish minimum
criteria for the development and implementation of
State, local, and regional contingency plans by
State and local governments in consultation with
private interests to insure timely, efficient, coordi-
nated and effective action to minimize damage re-
sulting from oil discharges. Such plans will be di-
rected toward the protection of the public health or
welfare of the United States, including, but not
limited to, fish, shellfish, wildlife, and public and
private property, shorelines, and beaches. The de-
velopment and implementation of such plans shall
be consistent with the National Oil and Hazardous
Materials Pollution Contingency Plan. State, local
and regional oil removal contingency plans shall
provide for the coordination of the total response
to an oil discharge so that contingency organiza-
tions established thereunder can function inde-
pendently, in conjunction with each other, or in
conjunction with the National and Regional Re-
sponse Teams established by the National Oil and
Hazardous Materials Pollution Contingency Plan.
§ 109.4 Relationship to Federal re-
sponse actions.
The National Oil and Hazardous Materials Pol-
lution Contingency Plan provides that the Federal
on-scene commander shall investigate all reported
spills. If such investigation shows that appropriate
action is being taken by either the discharger or
non-Federal entities, the Federal on-scene com-
mander shall monitor and provide advice or assist-
ance, as required. If appropriate containment or
cleanup action is not being taken by the discharger
or non-Federal entities, the Federal on-scene com-
mander will take control of the response activity
in accordance with section ll(c)(l) of the Federal
Act.
§ 109.5 Development and implementa-
tion criteria for State, local and
regional oil removal contingency
plans.
Criteria for the development and implementation
of State, local and regional oil removal contin-
gency plans are:
1
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§109.6
(a) Definition of the authorities, responsibilities
and duties of all persons, organizations or agencies
which are to be involved or could be involved in
planning or directing oil removal operations, with
particular care to clearly define the authorities, re-
sponsibilities and duties of State and local govern-
mental agencies to avoid unnecessary duplication
of contingency planning activities and to minimize
the potential for conflict and confusion that could
be generated in an emergency situation as a result
of such duplications.
(b) Establishment of notification procedures for
the purpose of early detection and timely notifica-
tion of an oil discharge including:
(1) The identification of critical water use areas
to facilitate the reporting of and response to oil
discharges.
(2) A current list of names, telephone numbers
and addresses of the responsible persons and alter-
nates on call to receive notification of an oil dis-
charge as well as the names, telephone numbers
and addresses of the organizations and agencies to
be notified when an oil discharge is discovered.
(3) Provisions for access to a reliable commu-
nications system for timely notification of an oil
discharge and incorporation in the communications
system of the capability for interconnection with
the communications systems established under re-
lated oil removal contingency plans, particularly
State and National plans.
(4) An established, prearranged procedure for
requesting assistance during a major disaster or
when the situation exceeds the response capability
of the State, local or regional authority.
(c) Provisions to assure that full resource capa-
bility is known and can be committed during an
oil discharge situation including:
(1) The identification and inventory of applica-
ble equipment, materials and supplies which are
available locally and regionally.
(2) An estimate of the equipment, materials and
supplies which would be required to remove the
maximum oil discharge to be anticipated.
(3) Development of agreements and arrange-
ments in advance of an oil discharge for the acqui-
sition of equipment, materials and supplies to be
used in responding to such a discharge.
(d) Provisions for well defined and specific ac-
tions to be taken after discovery and notification
of an oil discharge including:
(1) Specification of an oil discharge response
operating team consisting of trained, prepared and
available operating personnel.
(2) Predesignation of a properly qualified oil
discharge response coordinator who is charged
with the responsibility and delegated commensu-
rate authority for directing and coordinating re-
sponse operations and who knows how to request
assistance from Federal authorities operating under
existing national and regional contingency plans.
(3) A preplanned location for an oil discharge
response operations center and a reliable commu-
nications system for directing the coordinated
overall response operations.
(4) Provisions for varying degrees of response
effort depending on the severity of the oil dis-
charge.
(5) Specification of the order of priority in
which the various water uses are to be protected
where more than one water use may be adversely
affected as a result of an oil discharge and where
response operations may not be adequate to pro-
tect all uses.
(e) Specific and well defined procedures to fa-
cilitate recovery of damages and enforcement
measures as provided for by State and local stat-
utes and ordinances.
§ 109.6 Coordination.
For the purposes of coordination, the contin-
gency plans of State and local governments should
be developed and implemented in consultation
with private interests. A copy of any oil removal
contingency plan developed by State and local
governments should be forwarded to the Council
on Environmental Quality upon request to facili-
tate the coordination of these contingency plans
with the National Oil and Hazardous Materials
Pollution Contingency Plan.
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PART 110—DISCHARGE OF OIL
Sec.
110.1 Definitions.
110.2 Applicability.
110.3 Discharge of oil in such quantities as "may be
harmful" pursuant to section 311(b)(4) of the Act.
110.4 Dispersants.
110.5 Discharges of oil not determined "as may be
harmful" pursuant to section 311(b)(3) of the Act.
110.6 Notice.
AUTHORITY: 33 U.S.C. 1321(b)(3) and (b)(4) and
1361(a); E.O. 11735, 38 FR 21243, 3 CFR Parts 1971-
1975 Comp.,p. 793.
SOURCE: 52 FR 10719, Apr. 2, 1987, unless otherwise
noted.
§110.1 Definitions.
Terms not defined in this section have the same
meaning given by the Section 311 of the Act. As
used in this part, the following terms shall have
the meaning indicated below:
Act means the Federal Water Pollution Control
Act, as amended, 33 U.S.C. 1251 et seq., also
known as the Clean Water Act;
Administrator means the Administrator of the
Environmental Protection Agency (EPA);
Applicable water quality standards means State
water quality standards adopted by the State pur-
suant to section 303 of the Act or promulgated by
EPA pursuant to that section;
MARPOL 73/78 means the International Con-
vention for the Prevention of Pollution from Ships,
1973, as modified by the Protocol of 1978 relating
thereto, Annex I, which regulates pollution from
oil and which entered into force on October 2,
1983;
Navigable waters means the waters of the Unit-
ed States, including the territorial seas. The term
includes:
(a) All waters that are currently used, were used
in the past, or may be susceptible to use in inter-
state or foreign commerce, including all waters
that are subject to the ebb and flow of the tide;
(b) Interstate waters, including interstate wet-
lands;
(c) All other waters such as intrastate lakes, riv-
ers, streams (including intermittent streams),
mudflats, sandflats, and wetlands, the use, deg-
radation, or destruction of which would affect or
could affect interstate or foreign commerce includ-
ing any such waters:
(1) That are or could be used by interstate or
foreign travelers for recreational or other purposes;
(2) From which fish or shellfish are or could be
taken and sold in interstate or foreign commerce;
(3) That are used or could be used for industrial
purposes by industries in interstate commerce;
(d) All impoundments of waters otherwise de-
fined as navigable waters under this section;
(e) Tributaries of waters identified in paragraphs
(a) through (d) of this section, including adjacent
wetlands; and
(f) Wetlands adjacent to waters identified in
paragraphs (a) through (e) of this section: Pro-
vided, That waste treatment systems (other than
cooling ponds meeting the criteria of this para-
graph) are not waters of the United States;
Navigable waters do not include prior converted
cropland. Notwithstanding the determination of an
area's status as prior converted cropland by any
other federal agency, for the purposes of the Clean
Water Act, the final authority regarding Clean
Water Act jurisdiction remains with EPA.
NPDES means National Pollutant Discharge
Elimination System;
Sheen means an iridescent appearance on the
surface of water;
Sludge means an aggregate of oil or oil and
other matter of any kind in any form other than
dredged spoil having a combined specific gravity
equivalent to or greater than water;
United States means the States, the District of
Columbia, the Commonwealth of Puerto Rico,
Guam, American Samoa, the Virgin Islands, and
the Trust Territory of the Pacific Islands;
Wetlands means those areas that are inundated
or saturated by surface or ground water at a fre-
quency or duration sufficient to support, and that
under normal circumstances do support, a preva-
lence of vegetation typically adapted for life in
saturated soil conditions. Wetlands generally in-
clude playa lakes, swamps, marshes, bogs and
similar areas such as sloughs, prairie potholes, wet
meadows, prairie river overflows, mudflats, and
natural ponds.
[52 FR 10719, Apr. 2, 1987, as amended at 58 FR 45039,
Aug. 25, 1993; 61 FR 7421, Feb. 28, 1996]
§110.2 Applicability.
The regulations of this part apply to the dis-
charge of oil prohibited by section 311(b)(3) of
the Act.
[61 FR 7421, Feb. 28, 1996]
§110.3 Discharge of oil in such quan-
tities as "may be harmful" pursuant
to section 311(b)(4) of the Act.
For purposes of section 311(b)(4) of the Act,
discharges of oil in such quantities that the Ad-
ministrator has determined may be harmful to the
public health or welfare or the environment of the
United States include discharges of oil that:
(a) Violate applicable water quality standards;
or
(b) Cause a film or sheen upon or discoloration
of the surface of the water or adjoining shorelines
or cause a sludge or emulsion to be deposited be-
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§110.4
neath the surface of the water or upon adjoining
shorelines.
[61 FR 7421, Feb. 28, 1996]
§110.4 Dispersants.
Addition of dispersants or emulsifiers to oil to
be discharged that would circumvent the provi-
sions of this part is prohibited.
[52 FR 10719, Apr. 2, 1987. Redesignated at 61 FR 7421,
Feb. 28, 1996]
§110.5 Discharges of oil not deter-
mined "as may be harmful" pursu-
ant to Section 311(b)(3) of the Act.
Notwithstanding any other provisions of this
part, the Administrator has not determined the fol-
lowing discharges of oil "as may be harmful" for
purposes of section 311(b) of the Act:
(a) Discharges of oil from a properly function-
ing vessel engine (including an engine on a public
vessel) and any discharges of such oil accumulated
in the bilges of a vessel discharged in compliance
with MARPOL 73/78, Annex I, as provided in 33
CFR part 151, subpart A;
(b) Other discharges of oil permitted under
MARPOL 73/78, Annex I, as provided in 33 CFR
part 151, subpart A; and
(c) Any discharge of oil explicitly permitted by
the Administrator in connection with research,
demonstration projects, or studies relating to the
prevention, control, or abatement of oil pollution.
[61 FR 7421, Feb. 28, 1996]
§110.6 Notice.
Any person in charge of a vessel or of an on-
shore or offshore facility shall, as soon as he or
she has knowledge of any discharge of oil from
such vessel or facility in violation of section
311(b)(3) of the Act, immediately notify the Na-
tional Response Center (NRC) (800^124-8802; in
the Washington, DC metropolitan area, 202-426-
2675). If direct reporting to the NRC is not prac-
ticable, reports may be made to the Coast Guard
or EPA predesignated On-Scene Coordinator
(OSC) for the geographic area where the discharge
occurs. All such reports shall be promptly relayed
to the NRC. If it is not possible to notify the NRC
or the predesignated OCS immediately, reports
may be made immediately to the nearest Coast
Guard unit, provided that the person in charge of
the vessel or onshore or offshore facility notifies
the NRC as soon as possible. The reports shall be
made in accordance with such procedures as the
Secretary of Transportation may prescribe. The
procedures for such notice are set forth in U.S.
Coast Guard regulations, 33 CFR part 153, subpart
B and in the National Oil and Hazardous Sub-
stances Pollution Contingency Plan, 40 CFR part
300, subpart E.
(Approved by the Office of Management and Budget
under the control number 2050-0046)
[52 FR 10719, Apr. 2, 1987. Redesignated and amended
at 61 FR 7421, Feb. 28, 1996; 61 FR 14032, Mar. 29,
1996]
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PART 112—OIL POLLUTION
PREVENTION
Sec.
112.1 General applicability.
112.2 Definitions.
112.3 Requirements for preparation and implementation
of Spill Prevention Control and Countermeasure
Plans.
112.4 Amendment of SPCC Plans by Regional Adminis-
trator.
112.5 Amendment of Spill Prevention Control and
Countermeasure Plans by owners or operators.
112.7 Guidelines for the preparation and implementation
of a Spill Prevention Control and Countermeasure
Plan.
112.20 Facility response plans.
112.21 Facility response training and drills/exercises.
APPENDIX A TO PART 112—MEMORANDUM OF UNDER-
STANDING BETWEEN THE SECRETARY OF TRANSPOR-
TATION AND THE ADMINISTRATOR OF THE ENVIRON-
MENTAL PROTECTION AGENCY
APPENDIX B TO PART 112—MEMORANDUM OF UNDER-
STANDING AMONG THE SECRETARY OF THE INTE-
RIOR, SECRETARY OF TRANSPORTATION, AND AD-
MINISTRATOR OF THE ENVIRONMENTAL PROTECTION
AGENCY
APPENDIX C TO PART 112—SUBSTANTIAL HARM CRI-
TERIA
APPENDIX D TO PART 112—DETERMINATION OF A
WORST CASE DISCHARGE PLANNING VOLUME
APPENDIX E TO PART 112—DETERMINATION AND EVAL-
UATION OF REQUIRED RESPONSE RESOURCES FOR
FACILITY RESPONSE PLANS
APPENDIX F TO PART 112—FACILITY-SPECIFIC RESPONSE
PLAN
AUTHORITY: 33 U.S.C. 1321 and 1361; E.O. 12777
(October 18, 1991), 3 CFR, 1991 Comp., p. 351.
SOURCE: 38 FR 34165, Dec. 11, 1973, unless otherwise
noted.
§112.1 General applicability.
(a) This part establishes procedures, methods
and equipment and other requirements for equip-
ment to prevent the discharge of oil from non-
transportation-related onshore and offshore facili-
ties into or upon the navigable waters of the Unit-
ed States or adjoining shorelines.
(b) Except as provided in paragraph (d) of this
section, this part applies to owners or operators of
non-transportation-related onshore and offshore fa-
cilities engaged in drilling, producing, gathering,
storing, processing, refining, transferring, distribut-
ing or consuming oil and oil products, and which,
due to their location, could reasonably be expected
to discharge oil in harmful quantities, as defined
in part 110 of this chapter, into or upon the navi-
gable waters of the United States or adjoining
shorelines.
(c) As provided in section 313 (86 Stat. 875)
departments, agencies, and instrumentalities of the
Federal government are subject to these regula-
tions to the same extent as any person, except for
the provisions of § 112.6.
(d) This part does not apply to:
(1) Facilities, equipment or operations which are
not subject to the jurisdiction of the Environmental
Protection Agency, as follows:
(i) Onshore and offshore facilities, which, due
to their location, could not reasonably be expected
to discharge oil into or upon the navigable waters
of the United States or adjoining shorelines. This
determination shall be based solely upon a consid-
eration of the geographical, locational aspects of
the facility (such as proximity to navigable waters
or adjoining shorelines, land contour, drainage,
etc.) and shall exclude consideration of manmade
features such as dikes, equipment or other struc-
tures which may serve to restrain, hinder, contain,
or otherwise prevent a discharge of oil from reach-
ing navigable waters of the United States or ad-
joining shorelines; and
(ii) Equipment or operations of vessels or trans-
portation-related onshore and offshore facilities
which are subject to authority and control of the
Department of Transportation, as defined in the
Memorandum of Understanding between the Sec-
retary of Transportation and the Administrator of
the Environmental Protection Agency, dated No-
vember 24, 1971, 36 FR 24000.
(2) Those facilities which, although otherwise
subject to the jurisdiction of the Environmental
Protection Agency, meet both of the following re-
quirements:
(i) The underground buried storage capacity of
the facility is 42,000 gallons or less of oil, and
(ii) The storage capacity, which is not buried, of
the facility is 1,320 gallons or less of oil, provided
no single container has a capacity in excess of 660
gallons.
(e) This part provides for the preparation and
implementation of Spill Prevention Control and
Countermeasure Plans prepared in accordance with
§112.7, designed to complement existing laws,
regulations, rules, standards, policies and proce-
dures pertaining to safety standards, fire preven-
tion and pollution prevention rules, so as to form
a comprehensive balanced Federal/State spill pre-
vention program to minimize the potential for oil
discharges. Compliance with this part does not in
any way relieve the owner or operator of an on-
shore or an offshore facility from compliance with
other Federal, State or local laws.
[38 FR 34165, Dec. 11, 1973, as amended at 41 FR
12657, Mar. 26, 1976]
§112.2 Definitions.
For the purposes of this part:
Adverse weather means the weather conditions
that make it difficult for response equipment and
1
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§112.2
personnel to cleanup or remove spilled oil, and
that will be considered when identifying response
systems and equipment in a response plan for the
applicable operating environment. Factors to con-
sider include significant wave height as specified
in Appendix E to this part, as appropriate, ice con-
ditions, temperatures, weather-related visibility,
and currents within the area in which the systems
or equipment are intended to function.
Complex means a facility possessing a combina-
tion of transportation-related and non-transpor-
tation-related components that is subject to the ju-
risdiction of more than one Federal agency under
section 3 lift) of the Clean Water Act.
Contract or other approved means: (1) A writ-
ten contractual agreement with an oil spill removal
organization(s) that identifies and ensures the
availability of the necessary personnel and equip-
ment within appropriate response times; and/or
(2) A written certification by the owner or oper-
ator that the necessary personnel and equipment
resources, owned or operated by the facility owner
or operator, are available to respond to a discharge
within appropriate response times; and/or
(3) Active membership in a local or regional oil
spill removal organization(s) that has identified
and ensures adequate access through such mem-
bership to necessary personnel and equipment to
respond to a discharge within appropriate response
times in the specified geographic areas; and/or
(4) Other specific arrangements approved by the
Regional Administrator upon request of the owner
or operator.
Discharge includes but is not limited to, any
spilling, leaking, pumping, pouring, emitting,
emptying or dumping. For purposes of this part,
the term discharge shall not include any discharge
of oil which is authorized by a permit issued pur-
suant to section 13 of the River and Harbor Act
of 1899 (30 Stat. 1121, 33 U.S.C. 407), or sec-
tions 402 or 405 of the FWPCA Amendments of
1972 (86 Stat. 816 et seq., 33 U.S.C. 1251 et
seq.).
Fish and wildlife and sensitive environments
means areas that may be identified by either their
legal designation or by evaluations of Area Com-
mittees (for planning) or members of the Federal
On-Scene Coordinator's spill response structure
(during responses). These areas may include wet-
lands, National and State parks, critical habitats
for endangered/threatened species, wilderness and
natural resource areas, marine sanctuaries and es-
tuarine reserves, conservation areas, preserves,
wildlife areas, wildlife refuges, wild and scenic
rivers, recreational areas, national forests, Federal
and State lands that are research national areas,
heritage program areas, land trust areas, and his-
torical and archeological sites and parks. These
areas may also include unique habitats such as:
aquaculture sites and agricultural surface water in-
takes, bird nesting areas, critical biological re-
source areas, designated migratory routes, and des-
ignated seasonal habitats.
Injury means a measurable adverse change, ei-
ther long- or short-term, in the chemical or phys-
ical quality or the viability of a natural resource
resulting either directly or indirectly from expo-
sure to a discharge of oil, or exposure to a product
of reactions resulting from a discharge of oil.
Maximum extent practicable means the limita-
tions used to determine oil spill planning resources
and response times for on-water recovery, shore-
line protection, and cleanup for worst case dis-
charges from onshore non- transportation-related
facilities in adverse weather. It considers the
planned capability to respond to a worst case dis-
charge in adverse weather, as contained in a re-
sponse plan that meets the requirements in
§ 112.20 or in a specific plan approved by the Re-
gional Administrator.
The term navigable waters of the United States
means navigable waters as defined in section
502(7) of the FWPCA, and includes:
(1) All navigable waters of the United States, as
defined in judicial decisions prior to passage of
the 1972 Amendments to the FWPCA (Pub. L.
92-500), and tributaries of such waters;
(2) Interstate waters;
(3) Intrastate lakes, rivers, and streams which
are utilized by interstate travelers for recreational
or other purposes; and
(4) Intrastate lakes, rivers, and streams from
which fish or shellfish are taken and sold in inter-
state commerce.
Navigable waters do not include prior converted
cropland. Notwithstanding the determination of an
area's status as prior converted cropland by any
other federal agency, for the purposes of the Clean
Water Act, the final authority regarding Clean
Water Act jurisdiction remains with EPA.
Offshore facility means any facility of any kind
located in, on, or under any of the navigable wa-
ters of the United States, which is not a transpor-
tation-related facility.
Oil means oil of any kind or in any form, in-
cluding, but not limited to petroleum, fuel oil,
sludge, oil refuse and oil mixed with wastes other
than dredged spoil.
Oil Spill Removal Organization means an entity
that provides oil spill response resources, and in-
cludes any for-profit or not-for-profit contractor,
cooperative, or in-house response resources that
have been established in a geographic area to pro-
vide required response resources.
Onshore facility means any facility of any kind
located in, on, or under any land within the United
States, other than submerged lands, which is not
a transportation-related facility.
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§112.3
Owner or operator means any person owning or
operating an onshore facility or an offshore facil-
ity, and in the case of any abandoned offshore fa-
cility, the person who owned or operated such fa-
cility immediately prior to such abandonment.
Person includes an individual, firm, corporation,
association, and a partnership.
Regional Administrator, means the Regional
Administrator of the Environmental Protection
Agency, or his designee, in and for the Region in
which the facility is located.
Spill event means a discharge of oil into or
upon the navigable waters of the United States or
adjoining shorelines in harmful quantities, as de-
fined at 40 CFR part 110.
Transportation-related and non-transportation-
related as applied to an onshore or offshore facil-
ity, are defined in the Memorandum of Under-
standing between the Secretary of Transportation
and the Administrator of the Environmental Pro-
tection Agency, dated November 24, 1971, 36 FR
24080.
United States means the States, the District of
Columbia, the Commonwealth of Puerto Rico, the
Canal Zone, Guam, American Samoa, the Virgin
Islands, and the Trust Territory of the Pacific Is-
lands.
Vessel means every description of watercraft or
other artificial contrivance used, or capable of
being used as a means of transportation on water,
other than a public vessel.
Worst case discharge for an onshore non-trans-
portation-related facility means the largest foresee-
able discharge in adverse weather conditions as
determined using the worksheets in Appendix D to
this part.
[38 FR 34165, Dec. 11, 1973, as amended at 58 FR
45039, Aug. 25, 1993; 59 FR 34097, July 1, 1994]
§112.3 Requirements for preparation
and implementation of Spill Pre-
vention Control and Counter-
measure Plans.
(a) Owners or operators of onshore and offshore
facilities in operation on or before the effective
date of this part that have discharged or, due to
their location, could reasonably be expected to dis-
charge oil in harmful quantities, as defined in 40
CFR part 110, into or upon the navigable waters
of the United States or adjoining shorelines, shall
prepare a Spill Prevention Control and Counter-
measure Plan (hereinafter "SPCC Plan"), in writ-
ing and in accordance with § 112.7. Except as pro-
vided for in paragraph (f) of this section, such
SPCC Plan shall be prepared within six months
after the effective date of this part and shall be
fully implemented as soon as possible, but not
later than one year after the effective date of this
part.
(b) Owners or operators of onshore and offshore
facilities that become operational after the effec-
tive date of this part, and that have discharged or
could reasonably be expected to discharge oil in
harmful quantities, as defined in 40 CFR part 110,
into or upon the navigable waters of the United
States or adjoining shorelines, shall prepare an
SPCC Plan in accordance with § 112.7. Except as
provided for in paragraph (f) of this section, such
SPCC Plan shall be prepared within six months
after the date such facility begins operations and
shall be fully implemented as soon as possible, but
not later than one year after such facility begins
operations.
(c) Owners or operators of onshore and offshore
mobile or portable facilities, such as onshore drill-
ing or workover rigs, barge mounted offshore
drilling or workover rigs, and portable fueling fa-
cilities shall prepare and implement an SPCC Plan
as required by paragraphs (a), (b) and (d) of this
section. The owners or operators of such facility
need not prepare a new SPCC Plan each time the
facility is moved to a new site. The SPCC Plan
may be a general plan, prepared in accordance
with §112.7, using good engineering practice.
When the mobile or portable facility is moved, it
must be located and installed using the spill pre-
vention practices outlined in the SPCC Plan for
the facility. No mobile or portable facility subject
to this regulation shall operate unless the SPCC
Plan has been implemented. The SPCC Plan shall
only apply while the facility is in a fixed (non-
transportation) operating mode.
(d) No SPCC Plan shall be effective to satisfy
the requirements of this part unless it has been re-
viewed by a Registered Professional Engineer and
certified to by such Professional Engineer. By
means of this certification the engineer, having ex-
amined the facility and being familiar with the
provisions of this part, shall attest that the SPCC
Plan has been prepared in accordance with good
engineering practices. Such certification shall in no
way relieve the owner or operator of an onshore
or offshore facility of his duty to prepare and fully
implement such Plan in accordance with §112.7,
as required by paragraphs (a), (b) and (c) of this
section.
(e) Owners or operators of a facility for which
an SPCC Plan is required pursuant to paragraph
(a), (b) or (c) of this section shall maintain a com-
plete copy of the Plan at such facility if the facil-
ity is normally attended at least 8 hours per day,
or at the nearest field office if the facility is not
so attended, and shall make such Plan available to
the Regional Administrator for on-site review dur-
ing normal working hours.
(f) Extensions of time. (1) The Regional Admin-
istrator may authorize an extension of time for the
preparation and full implementation of an SPCC
-------
§112.4
Plan beyond the time permitted for the preparation
and implementation of an SPCC Plan pursuant to
paragraph (a), (b) or (c) of this section where he
finds that the owner or operator of a facility sub-
ject to paragraphs (a), (b) or (c) of this section
cannot fully comply with the requirements of this
part as a result of either nonavailability of quali-
fied personnel, or delays in construction or equip-
ment delivery beyond the control and without the
fault of such owner or operator or their respective
agents or employees.
(2) Any owner or operator seeking an extension
of time pursuant to paragraph (f)(l) of this section
may submit a letter of request to the Regional Ad-
ministrator. Such letter shall include:
(i) A complete copy of the SPCC Plan, if com-
pleted;
(ii) A full explanation of the cause for any such
delay and the specific aspects of the SPCC Plan
affected by the delay;
(iii) A full discussion of actions being taken or
contemplated to minimize or mitigate such delay;
(iv) A proposed time schedule for the imple-
mentation of any corrective actions being taken or
contemplated, including interim dates for comple-
tion of tests or studies, installation and operation
of any necessary equipment or other preventive
measures.
In addition, such owner or operator may present
additional oral or written statements in support of
his letter of request.
(3) The submission of a letter of request for ex-
tension of time pursuant to paragraph (f)(2) of this
section shall in no way relieve the owner or opera-
tor from his obligation to comply with the require-
ments of §112.3 (a), (b) or (c). Where an exten-
sion of time is authorized by the Regional Admin-
istrator for particular equipment or other specific
aspects of the SPCC Plan, such extension shall in
no way affect the owner's or operator's obligation
to comply with the requirements of § 112.3 (a), (b)
or (c) with respect to other equipment or other
specific aspects of the SPCC Plan for which an
extension of time has not been expressly author-
ized.
[38 FR 34165, Dec. 11, 1973, as amended at 41 FR
12657, Mar. 26, 1976]
§112.4 Amendment of SPCC Plans by
Regional Administrator.
(a) Notwithstanding compliance with §112.3,
whenever a facility subject to §112.3 (a), (b) or
(c) has: Discharged more than 1,000 U.S. gallons
of oil into or upon the navigable waters of the
United States or adjoining shorelines in a single
spill event, or discharged oil in harmful quantities,
as defined in 40 CFR part 110, into or upon the
navigable waters of the United States or adjoining
shorelines in two spill events, reportable under
section 311(b)(5) of the FWPCA, occurring within
any twelve month period, the owner or operator of
such facility shall submit to the Regional Adminis-
trator, within 60 days from the time such facility
becomes subject to this section, the following:
(1) Name of the facility;
(2) Name(s) of the owner or operator of the fa-
cility;
(3) Location of the facility;
(4) Date and year of initial facility operation;
(5) Maximum storage or handling capacity of
the facility and normal daily throughput;
(6) Description of the facility, including maps,
flow diagrams, and topographical maps;
(7) A complete copy of the SPCC Plan with any
amendments;
(8) The cause(s) of such spill, including a fail-
ure analysis of system or subsystem in which the
failure occurred;
(9) The corrective actions and/or counter-
measures taken, including an adequate description
of equipment repairs and/or replacements;
(10) Additional preventive measures taken or
contemplated to minimize the possibility of recur-
rence;
(11) Such other information as the Regional Ad-
ministrator may reasonably require pertinent to the
Plan or spill event.
(b) Section 112.4 shall not apply until the expi-
ration of the time permitted for the preparation
and implementation of an SPCC Plan pursuant to
§112.3 (a), (b), (c)and(f).
(c) A complete copy of all information provided
to the Regional Administrator pursuant to para-
graph (a) of this section shall be sent at the same
time to the State agency in charge of water pollu-
tion control activities in and for the State in which
the facility is located. Upon receipt of such infor-
mation such State agency may conduct a review
and make recommendations to the Regional Ad-
ministrator as to further procedures, methods,
equipment and other requirements for equipment
necessary to prevent and to contain discharges of
oil from such facility.
(d) After review of the SPCC Plan for a facility
subject to paragraph (a) of this section, together
with all other information submitted by the owner
or operator of such facility, and by the State agen-
cy under paragraph (c) of this section, the Re-
gional Administrator may require the owner or op-
erator of such facility to amend the SPCC Plan if
he finds that the Plan does not meet the require-
ments of this part or that the amendment of the
Plan is necessary to prevent and to contain dis-
charges of oil from such facility.
(e) When the Regional Administrator proposes
to require an amendment to the SPCC Plan, he
shall notify the facility operator by certified mail
-------
§112.7
addressed to, or by personal delivery to, the facil-
ity owner or operator, that he proposes to require
an amendment to the Plan, and shall specify the
terms of such amendment. If the facility owner or
operator is a corporation, a copy of such notice
shall also be mailed to the registered agent, if any,
of such corporation in the State where such facil-
ity is located. Within 30 days from receipt of such
notice, the facility owner or operator may submit
written information, views, and arguments on the
amendment. After considering all relevant material
presented, the Regional Administrator shall notify
the facility owner or operator of any amendment
required or shall rescind the notice. The amend-
ment required by the Regional Administrator shall
become part of the Plan 30 days after such notice,
unless the Regional Administrator, for good cause,
shall specify another effective date. The owner or
operator of the facility shall implement the amend-
ment of the Plan as soon as possible, but not later
than six months after the amendment becomes part
of the Plan, unless the Regional Administrator
specifies another date.
(f) An owner or operator may appeal a decision
made by the Regional Administrator requiring an
amendment to an SPCC Plan. The appeal shall be
made to the Administrator of the United States
Environmental Protection Agency and must be
made in writing within 30 days of receipt of the
notice from the Regional Administrator requiring
the amendment. A complete copy of the appeal
must be sent to the Regional Administrator at the
time the appeal is made. The appeal shall contain
a clear and concise statement of the issues and
points of fact in the case. It may also contain addi-
tional information from the owner or operator, or
from any other person. The Administrator or his
designee may request additional information from
the owner or operator, or from any other person.
The Administrator or his designee shall render a
decision within 60 days of receiving the appeal
and shall notify the owner or operator of his deci-
sion.
[38 FR 34165, Dec. 11, 1973, as amended at 41 FR
12658, Mar. 26, 1976]
§112.5 Amendment of Spill Prevention
Control and Countermeasure Plans
by owners or operators.
(a) Owners or operators of facilities subject to
§ 112.3 (a), (b) or (c) shall amend the SPCC Plan
for such facility in accordance with § 112.7 when-
ever there is a change in facility design, construc-
tion, operation or maintenance which materially
affects the facility's potential for the discharge of
oil into or upon the navigable waters of the United
States or adjoining shore lines. Such amendments
shall be fully implemented as soon as possible, but
not later than six months after such change occurs.
(b) Notwithstanding compliance with paragraph
(a) of this section, owners and operators of facili-
ties subject to § 112.3 (a), (b) or (c) shall complete
a review and evaluation of the SPCC Plan at least
once every three years from the date such facility
becomes subject to this part. As a result of this re-
view and evaluation, the owner or operator shall
amend the SPCC Plan within six months of the re-
view to include more effective prevention and
control technology if: (1) Such technology will
significantly reduce the likelihood of a spill event
from the facility, and (2) if such technology has
been field-proven at the time of the review.
(c) No amendment to an SPCC Plan shall be ef-
fective to satisfy the requirements of this section
unless it has been certified by a Professional Engi-
neer in accordance with § 112.3(d).
§112.7 Guidelines for the preparation
and implementation of a Spill Pre-
vention Control and Counter-
measure Plan.
The SPCC Plan shall be a carefully thought-out
plan, prepared in accordance with good engineer-
ing practices, and which has the full approval of
management at a level with authority to commit
the necessary resources. If the plan calls for addi-
tional facilities or procedures, methods, or equip-
ment not yet fully operational, these items should
be discussed in separate paragraphs, and the de-
tails of installation and operational start-up should
be explained separately. The complete SPCC Plan
shall follow the sequence outlined below, and in-
clude a discussion of the facility's conformance
with the appropriate guidelines listed:
(a) A facility which has experienced one or
more spill events within twelve months prior to
the effective date of this part should include a
written description of each such spill, corrective
action taken and plans for preventing recurrence.
(b) Where experience indicates a reasonable po-
tential for equipment failure (such as tank over-
flow, rupture, or leakage), the plan should include
a prediction of the direction, rate of flow, and total
quantity of oil which could be discharged from the
facility as a result of each major type of failure.
(c) Appropriate containment and/or diversionary
structures or equipment to prevent discharged oil
from reaching a navigable water course should be
provided. One of the following preventive systems
or its equivalent should be used as a minimum:
(1) Onshore facilities:
(i) Dikes, berms or retaining walls sufficiently
impervious to contain spilled oil;
(ii) Curbing;
(iii) Culverting, gutters or other drainage sys-
tems;
(iv) Weirs, booms or other barriers;
(v) Spill diversion ponds;
(vi) Retention ponds;
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§112.7
(vii) Sorbent materials.
(2) Offshore facilities:
(i) Curbing, drip pans;
(ii) Sumps and collection systems.
(d) When it is determined that the installation of
structures or equipment listed in § 112.7(c) to pre-
vent discharged oil from reaching the navigable
waters is not practicable from any onshore or off-
shore facility, the owner or operator should clearly
demonstrate such impracticability and provide the
following:
(1) A strong oil spill contingency plan following
the provision of 40 CFR part 109.
(2) A written commitment of manpower, equip-
ment and materials required to expeditiously con-
trol and remove any harmful quantity of oil dis-
charged.
(e) In addition to the minimal prevention stand-
ards listed under §112.7(c), sections of the Plan
should include a complete discussion of conform-
ance with the following applicable guidelines,
other effective spill prevention and containment
procedures (or, if more stringent, with State rules,
regulations and guidelines):
(1) Facility drainage (onshore); (excluding pro-
duction facilities), (i) Drainage from diked storage
areas should be restrained by valves or other posi-
tive means to prevent a spill or other excessive
leakage of oil into the drainage system or inplant
effluent treatment system, except where plan sys-
tems are designed to handle such leakage. Diked
areas may be emptied by pumps or ejectors; how-
ever, these should be manually activated and the
condition of the accumulation should be examined
before starting to be sure no oil will be discharged
into the water.
(ii) Flapper-type drain valves should not be used
to drain diked areas. Valves used for the drainage
of diked areas should, as far as practical, be of
manual, open-and-closed design. When plant
drainage drains directly into water courses and not
into wastewater treatment plants, retained storm
water should be inspected as provided in para-
graphs (e)(2)(iii) (B), (C) and (D) of this section
before drainage.
(iii) Plant drainage systems from undiked areas
should, if possible, flow into ponds, lagoons or
catchment basins, designed to retain oil or return
it to the facility. Catchment basins should not be
located in areas subject to periodic flooding.
(iv) If plant drainage is not engineered as above,
the final discharge of all in-plant ditches should be
equipped with a diversion system that could, in the
event of an uncontrolled spill, return the oil to the
plant.
(v) Where drainage waters are treated in more
than one treatment unit, natural hydraulic flow
should be used. If pump transfer is needed, two
"lift" pumps should be provided, and at least one
of the pumps should be permanently installed
when such treatment is continuous. In any event,
whatever techniques are used facility drainage sys-
tems should be adequately engineered to prevent
oil from reaching navigable waters in the event of
equipment failure or human error at the facility.
(2) Bulk storage tanks (onshore); (excluding
production facilities), (i) No tank should be used
for the storage of oil unless its material and con-
struction are compatible with the material stored
and conditions of storage such as pressure and
temperature, etc.
(ii) All bulk storage tank installations should be
constructed so that a secondary means of contain-
ment is provided for the entire contents of the
largest single tank plus sufficient freeboard to
allow for precipitation. Diked areas should be suf-
ficiently impervious to contain spilled oil. Dikes,
containment curbs, and pits are commonly em-
ployed for this purpose, but they may not always
be appropriate. An alternative system could consist
of a complete drainage trench enclosure arranged
so that a spill could terminate and be safely con-
fined in an in-plant catchment basin or holding
pond.
(iii) Drainage of rainwater from the diked area
into a storm drain or an effluent discharge that
empties into an open water course, lake, or pond,
and bypassing the in-plant treatment system may
be acceptable if:
(A) The bypass valve is normally sealed closed.
(B) Inspection of the run-off rain water ensures
compliance with applicable water quality standards
and will not cause a harmful discharge as defined
in 40 CFR part 110.
(C) The bypass valve is opened, and resealed
following drainage under responsible supervision.
(D) Adequate records are kept of such events.
(iv) Buried metallic storage tanks represent a
potential for undetected spills. A new buried in-
stallation should be protected from corrosion by
coatings, cathodic protection or other effective
methods compatible with local soil conditions.
Such buried tanks should at least be subjected to
regular pressure testing.
(v) Partially buried metallic tanks for the stor-
age of oil should be avoided, unless the buried
section of the shell is adequately coated, since par-
tial burial in damp earth can cause rapid corrosion
of metallic surfaces, especially at the earth/air
interface.
(vi) Aboveground tanks should be subject to
periodic integrity testing, taking into account tank
design (floating roof, etc.) and using such tech-
niques as hydrostatic testing, visual inspection or
a system of non-destructive shell thickness testing.
Comparison records should be kept where appro-
priate, and tank supports and foundations should
be included in these inspections. In addition, the
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§112.7
outside of the tank should frequently be observed
by operating personnel for signs of deterioration,
leaks which might cause a spill, or accumulation
of oil inside diked areas.
(vii) To control leakage through defective inter-
nal heating coils, the following factors should be
considered and applied, as appropriate.
(A) The steam return or exhaust lines from in-
ternal heating coils which discharge into an open
water course should be monitored for contamina-
tion, or passed through a settling tank, skimmer, or
other separation or retention system.
(B) The feasibility of installing an external heat-
ing system should also be considered.
(viii) New and old tank installations should, as
far as practical, be fail-safe engineered or updated
into a fail-safe engineered installation to avoid
spills. Consideration should be given to providing
one or more of the following devices:
(A) High liquid level alarms with an audible or
visual signal at a constantly manned operation or
surveillance station; in smaller plants an audible
air vent may suffice.
(B) Considering size and complexity of the fa-
cility, high liquid level pump cutoff devices set to
stop flow at a predetermined tank content level.
(C) Direct audible or code signal communica-
tion between the tank gauger and the pumping sta-
tion.
(D) A fast response system for determining the
liquid level of each bulk storage tank such as digi-
tal computers, telepulse, or direct vision gauges or
their equivalent.
(E) Liquid level sensing devices should be regu-
larly tested to insure proper operation.
(ix) Plant effluents which are discharged into
navigable waters should have disposal facilities
observed frequently enough to detect possible sys-
tem upsets that could cause an oil spill event.
(x) Visible oil leaks which result in a loss of oil
from tank seams, gaskets, rivets and bolts suffi-
ciently large to cause the accumulation of oil in
diked areas should be promptly corrected.
(xi) Mobile or portable oil storage tanks (on-
shore) should be positioned or located so as to
prevent spilled oil from reaching navigable waters.
A secondary means of containment, such as dikes
or catchment basins, should be furnished for the
largest single compartment or tank. These facilities
should be located where they will not be sub-
ject to periodic flooding or washout.
(3) Facility transfer operations, pumping, and
in-plant process (onshore); (excluding production
facilities), (i) Buried piping installations should
have a protective wrapping and coating and should
be cathodically protected if soil conditions war-
rant. If a section of buried line is exposed for any
reason, it should be carefully examined for dete-
rioration. If corrosion damage is found, additional
examination and corrective action should be taken
as indicated by the magnitude of the damage. An
alternative would be the more frequent use of ex-
posed pipe corridors or galleries.
(ii) When a pipeline is not in service, or in
standby service for an extended time the terminal
connection at the transfer point should be capped
or blank-flanged, and marked as to origin.
(iii) Pipe supports should be properly designed
to minimize abrasion and corrosion and allow for
expansion and contraction.
(iv) All aboveground valves and pipelines
should be subjected to regular examinations by op-
erating personnel at which time the general condi-
tion of items, such as flange joints, expansion
joints, valve glands and bodies, catch pans, pipe-
line supports, locking of valves, and metal sur-
faces should be assessed. In addition, periodic
pressure testing may be warranted for piping in
areas where facility drainage is such that a failure
might lead to a spill event.
(v) Vehicular traffic granted entry into the facil-
ity should be warned verbally or by appropriate
signs to be sure that the vehicle, because of its
size, will not endanger above ground piping.
(4) Facility tank car and tank truck loading/un-
loading rack (onshore), (i) Tank car and tank
truck loading/unloading procedures should meet
the minimum requirements and regulation estab-
lished by the Department of Transportation.
(ii) Where rack area drainage does not flow into
a catchment basin or treatment facility designed to
handle spills, a quick drainage system should be
used for tank truck loading and unloading areas.
The containment system should be designed to
hold at least maximum capacity of any single
compartment of a tank car or tank truck loaded or
unloaded in the plant.
(iii) An interlocked warning light or physical
barrier system, or warning signs, should be pro-
vided in loading/unloading areas to prevent vehic-
ular departure before complete disconnect of flexi-
ble or fixed transfer lines.
(iv) Prior to filling and departure of any tank
car or tank truck, the lowermost drain and all out-
lets of such vehicles should be closely examined
for leakage, and if necessary, tightened, adjusted,
or replaced to prevent liquid leakage while in tran-
sit.
(5) Oil production facilities (onshore)—(i) Defi-
nition. An onshore production facility may include
all wells, flowlines, separation equipment, storage
facilities, gathering lines, and auxiliary non-trans-
portation-related equipment and facilities in a sin-
gle geographical oil or gas field operated by a sin-
gle operator.
(ii) Oil production facility (onshore) drainage.
(A) At tank batteries and central treating stations
where an accidental discharge of oil would have
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§112.7
a reasonable possibility of reaching navigable wa-
ters, the dikes or equivalent required under
§ 112.7(c)(l) should have drains closed and sealed
at all times except when rainwater is being
drained. Prior to drainage, the diked area should
be inspected as provided in paragraphs (e)(2)(iii)
(B), (C), and (D) of this section. Accumulated oil
on the rainwater should be picked up and returned
to storage or disposed of in accordance with ap-
proved methods.
(B) Field drainage ditches, road ditches, and oil
traps, sumps or skimmers, if such exist, should be
inspected at regularly scheduled intervals for accu-
mulation of oil that may have escaped from small
leaks. Any such accumulations should be removed.
(iii) Oil production facility (onshore) bulk stor-
age tanks. (A) No tank should be used for the
storage of oil unless its material and construction
are compatible with the material stored and the
conditions of storage.
(B) All tank battery and central treating plant
installations should be provided with a secondary
means of containment for the entire contents of
the largest single tank if feasible, or alternate sys-
tems such as those outlined in § 112.7(c)(l).
Drainage from undiked areas should be safely con-
fined in a catchment basin or holding pond.
(C) All tanks containing oil should be visually
examined by a competent person for condition and
need for maintenance on a scheduled periodic
basis. Such examination should include the foun-
dation and supports of tanks that are above the
surface of the ground.
(D) New and old tank battery installations
should, as far as practical, be fail-safe engineered
or updated into a fail-safe engineered installation
to prevent spills. Consideration should be given to
one or more of the following:
(7) Adequate tank capacity to assure that a tank
will not overfill should a pumper/gauger be de-
layed in making his regular rounds.
(2) Overflow equalizing lines between tanks so
that a full tank can overflow to an adjacent tank.
(_?) Adequate vacuum protection to prevent tank
collapse during a pipeline run.
(4) High level sensors to generate and transmit
an alarm signal to the computer where facilities
are a part of a computer production control sys-
tem.
(iv) Facility transfer operations, oil production
facility (onshore). (A) All above ground valves
and pipelines should be examined periodically on
a scheduled basis for general condition of items
such as flange joints, valve glands and bodies, drip
pans, pipeline supports, pumping well polish rod
stuffing boxes, bleeder and gauge valves.
(B) Salt water (oil field brine) disposal facilities
should be examined often, particularly following a
sudden change in atmospheric temperature to de-
tect possible system upsets that could cause an oil
discharge.
(C) Production facilities should have a program
of flowline maintenance to prevent spills from this
source. The program should include periodic ex-
aminations, corrosion protection, flowline replace-
ment, and adequate records, as appropriate, for the
individual facility.
(6) Oil drilling and workover facilities (on-
shore), (i) Mobile drilling or workover equipment
should be positioned or located so as to prevent
spilled oil from reaching navigable waters.
(ii) Depending on the location, catchment basins
or diversion structures may be necessary to inter-
cept and contain spills of fuel, crude oil, or oily
drilling fluids.
(iii) Before drilling below any casing string or
during workover operations, a blowout prevention
(BOP) assembly and well control system should
be installed that is capable of controlling any well
head pressure that is expected to be encountered
while that BOP assembly is on the well. Casing
and BOP installations should be in accordance
with State regulatory agency requirements.
(7) Oil drilling, production, or workover facili-
ties (offshore), (i) Definition: "An oil drilling,
production or workover facility (offshore)" may
include all drilling or workover equipment, wells,
flowlines, gathering lines, platforms, and auxiliary
nontransportation-related equipment and facilities
in a single geographical oil or gas field operated
by a single operator.
(ii) Oil drainage collection equipment should be
used to prevent and control small oil spillage
around pumps, glands, valves, flanges, expansion
joints, hoses, drain lines, separators, treaters, tanks,
and allied equipment. Drains on the facility should
be controlled and directed toward a central collec-
tion sump or equivalent collection system suffi-
cient to prevent discharges of oil into the navi-
gable waters of the United States. Where drains
and sumps are not practicable oil contained in col-
lection equipment should be removed as often as
necessary to prevent overflow.
(iii) For facilities employing a sump system,
sump and drains should be adequately sized and a
spare pump or equivalent method should be avail-
able to remove liquid from the sump and assure
that oil does not escape. A regular scheduled pre-
ventive maintenance inspection and testing pro-
gram should be employed to assure reliable oper-
ation of the liquid removal system and pump start-
up device. Redundant automatic sump pumps and
control devices may be required on some installa-
tions.
(iv) In areas where separators and treaters are
equipped with dump valves whose predominant
mode of failure is in the closed position and pollu-
tion risk is high, the facility should be specially
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§112.7
equipped to prevent the escape of oil. This could
be accomplished by extending the flare line to a
diked area if the separator is near shore, equipping
it with a high liquid level sensor that will auto-
matically shut-in wells producing to the separator,
parallel redundant dump valves, or other feasible
alternatives to prevent oil discharges.
(v) Atmospheric storage or surge tanks should
be equipped with high liquid level sensing devices
or other acceptable alternatives to prevent oil dis-
charges.
(vi) Pressure tanks should be equipped with
high and low pressure sensing devices to activate
an alarm and/or control the flow or other accept-
able alternatives to prevent oil discharges.
(vii) Tanks should be equipped with suitable
corrosion protection.
(viii) A written procedure for inspecting and
testing pollution prevention equipment and sys-
tems should be prepared and maintained at the fa-
cility. Such procedures should be included as part
of the SPCC Plan.
(ix) Testing and inspection of the pollution pre-
vention equipment and systems at the facility
should be conducted by the owner or operator on
a scheduled periodic basis commensurate with the
complexity, conditions and circumstances of the
facility or other appropriate regulations.
(x) Surface and subsurface well shut-in valves
and devices in use at the facility should be suffi-
ciently described to determine method of activa-
tion or control, e.g., pressure differential, change
in fluid or flow conditions, combination of pres-
sure and flow, manual or remote control mecha-
nisms. Detailed records for each well, while not
necessarily part of the plan should be kept by the
owner or operator.
(xi) Before drilling below any casing string, and
during workover operations a blowout preventer
(BOP) assembly and well control system should
be installed that is capable of controlling any well-
head pressure that is expected to be encountered
while that BOP assembly is on the well. Casing
and BOP installations should be in accordance
with State regulatory agency requirements.
(xii) Extraordinary well control measures should
be provided should emergency conditions, includ-
ing fire, loss of control and other abnormal condi-
tions, occur. The degree of control system redun-
dancy should vary with hazard exposure and prob-
able consequences of failure. It is recommended
that surface shut-in systems have redundant or
"fail close" valving. Subsurface safety valves
may not be needed in producing wells that will
not flow but should be installed as required by ap-
plicable State regulations.
(xiii) In order that there will be no misunder-
standing of joint and separate duties and obliga-
tions to perform work in a safe and pollution free
manner, written instructions should be prepared by
the owner or operator for contractors and sub-
contractors to follow whenever contract activities
include servicing a well or systems appurtenant to
a well or pressure vessel. Such instructions and
procedures should be maintained at the offshore
production facility. Under certain circumstances
and conditions such contractor activities may re-
quire the presence at the facility of an authorized
representative of the owner or operator who would
intervene when necessary to prevent a spill event.
(xiv) All manifolds (headers) should be
equipped with check valves on individual
flowlines.
(xv) If the shut-in well pressure is greater than
the working pressure of the flowline and manifold
valves up to and including the header valves asso-
ciated with that individual flowline, the flowline
should be equipped with a high pressure sensing
device and shut-in valve at the wellhead unless
provided with a pressure relief system to prevent
over pressuring.
(xvi) All pipelines appurtenant to the facility
should be protected from corrosion. Methods used,
such as protective coatings or cathodic protection,
should be discussed.
(xvii) Sub-marine pipelines appurtenant to the
facility should be adequately protected against en-
vironmental stresses and other activities such as
fishing operations.
(xviii) Sub-marine pipelines appurtenant to the
facility should be in good operating condition at
all times and inspected on a scheduled periodic
basis for failures. Such inspections should be doc-
umented and maintained at the facility.
(8) Inspections and records. Inspections re-
quired by this part should be in accordance with
written procedures developed for the facility by
the owner or operator. These written procedures
and a record of the inspections, signed by the ap-
propriate supervisor or inspector, should be made
part of the SPCC Plan and maintained for a period
of three years.
(9) Security (excluding oil production facilities).
(i) All plants handling, processing, and storing oil
should be fully fenced, and entrance gates should
be locked and/or guarded when the plant is not in
production or is unattended.
(ii) The master flow and drain valves and any
other valves that will permit direct outward flow
of the tank's content to the surface should be se-
curely locked in the closed position when in non-
operating or non-standby status.
(iii) The starter control on all oil pumps should
be locked in the "off" position or located at a site
accessible only to authorized personnel when the
pumps are in a non-operating or non-standby sta-
tus.
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§112.20
(iv) The loading/unloading connections of oil
pipelines should be securely capped or blank-
flanged when not in service or standby service for
an extended time. This security practice should
also apply to pipelines that are emptied of liquid
content either by draining or by inert gas pressure.
(v) Facility lighting should be commensurate
with the type and location of the facility. Consid-
eration should be given to: (A) Discovery of spills
occurring during hours of darkness, both by oper-
ating personnel, if present, and by non-operating
personnel (the general public, local police, etc.)
and (B) prevention of spills occurring through acts
of vandalism.
(10) Personnel, training and spill prevention
procedures, (i) Owners or operators are respon-
sible for properly instructing their personnel in the
operation and maintenance of equipment to pre-
vent the discharges of oil and applicable pollution
control laws, rules and regulations.
(ii) Each applicable facility should have a des-
ignated person who is accountable for oil spill pre-
vention and who reports to line management.
(iii) Owners or operators should schedule and
conduct spill prevention briefings for their operat-
ing personnel at intervals frequent enough to as-
sure adequate understanding of the SPCC Plan for
that facility. Such briefings should highlight and
describe known spill events or failures, malfunc-
tioning components, and recently developed pre-
cautionary measures.
§ 112.20 Facility response plans.
(a) The owner or operator of any non-transpor-
tation-related onshore facility that, because of its
location, could reasonably be expected to cause
substantial harm to the environment by discharg-
ing oil into or on the navigable waters or adjoin-
ing shorelines shall prepare and submit a facility
response plan to the Regional Administrator, ac-
cording to the following provisions:
(1) For the owner or operator of a facility in op-
eration on or before February 18, 1993 who is re-
quired to prepare and submit a response plan
under 33 U.S.C. 1321(j)(5), the Oil Pollution Act
of 1990 (Pub. L. 101-380, 33 U.S.C. 2701 et seq.)
requires the submission of a response plan that
satisfies the requirements of 33 U.S.C. 1321(j)(5)
no later than February 18, 1993.
(i) The owner or operator of an existing facility
that was in operation on or before February 18,
1993 who submitted a response plan by February
18, 1993 shall revise the response plan to satisfy
the requirements of this section and resubmit the
response plan or updated portions of the response
plan to the Regional Administrator by February
18, 1995.
(ii) The owner or operator of an existing facility
in operation on or before February 18, 1993 who
failed to submit a response plan by February 18,
1993 shall prepare and submit a response plan that
satisfies the requirements of this section to the Re-
gional Administrator before August 30, 1994.
(2) The owner or operator of a facility in oper-
ation on or after August 30, 1994 that satisfies the
criteria in paragraph (f)(l) of this section or that
is notified by the Regional Administrator pursuant
to paragraph (b) of this section shall prepare and
submit a facility response plan that satisfies the re-
quirements of this section to the Regional Admin-
istrator.
(i) For a facility that commenced operations
after February 18, 1993 but prior to August 30,
1994, and is required to prepare and submit a re-
sponse plan based on the criteria in paragraph
(f)(l) of this section, the owner or operator shall
submit the response plan or updated portions of
the response plan, along with a completed version
of the response plan cover sheet contained in Ap-
pendix F to this part, to the Regional Adminis-
trator prior to August 30, 1994.
(ii) For a newly constructed facility that com-
mences operation after August 30, 1994, and is re-
quired to prepare and submit a response plan
based on the criteria in paragraph (f)(l) of this
section, the owner or operator shall submit the re-
sponse plan, along with a completed version of the
response plan cover sheet contained in Appendix
F to this part, to the Regional Administrator prior
to the start of operations (adjustments to the re-
sponse plan to reflect changes that occur at the fa-
cility during the start-up phase of operations must
be submitted to the Regional Administrator after
an operational trial period of 60 days).
(iii) For a facility required to prepare and sub-
mit a response plan after August 30, 1994, as a re-
sult of a planned change in design, construction,
operation, or maintenance that renders the facility
subject to the criteria in paragraph (f)(l) of this
section, the owner or operator shall submit the re-
sponse plan, along with a completed version of the
response plan cover sheet contained in Appendix
F to this part, to the Regional Administrator before
the portion of the facility undergoing change com-
mences operations (adjustments to the response
plan to reflect changes that occur at the facility
during the start-up phase of operations must be
submitted to the Regional Administrator after an
operational trial period of 60 days).
(iv) For a facility required to prepare and sub-
mit a response plan after August 30, 1994, as a re-
sult of an unplanned event or change in facility
characteristics that renders the facility subject to
the criteria in paragraph (f)(l) of this section, the
owner or operator shall submit the response plan,
along with a completed version of the response
plan cover sheet contained in Appendix F to this
10
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§112.20
part, to the Regional Administrator within six
months of the unplanned event or change.
(3) In the event the owner or operator of a facil-
ity that is required to prepare and submit a re-
sponse plan uses an alternative formula that is
comparable to one contained in Appendix C to
this part to evaluate the criterion in paragraph
(f)(l)(ii)(B) or (f)(l)(ii)(C) of this section, the
owner or operator shall attach documentation to
the response plan cover sheet contained in Appen-
dix F to this part that demonstrates the reliability
and analytical soundness of the alternative for-
mula.
(b)(l) The Regional Administrator may at any
time require the owner or operator of any non-
transportation-related onshore facility to prepare
and submit a facility response plan under this sec-
tion after considering the factors in paragraph
(f)(2) of this section. If such a determination is
made, the Regional Administrator shall notify the
facility owner or operator in writing and shall pro-
vide a basis for the determination. If the Regional
Administrator notifies the owner or operator in
writing of the requirement to prepare and submit
a response plan under this section, the owner or
operator of the facility shall submit the response
plan to the Regional Administrator within six
months of receipt of such written notification.
(2) The Regional Administrator shall review
plans submitted by such facilities to determine
whether the facility could, because of its location,
reasonably be expected to cause significant and
substantial harm to the environment by discharg-
ing oil into or on the navigable waters or adjoin-
ing shorelines.
(c) The Regional Administrator shall determine
whether a facility could, because of its location,
reasonably be expected to cause significant and
substantial harm to the environment by discharg-
ing oil into or on the navigable waters or adjoin-
ing shorelines, based on the factors in paragraph
(f)(3) of this section. If such a determination is
made, the Regional Administrator shall notify the
owner or operator of the facility in writing and:
(1) Promptly review the facility response plan;
(2) Require amendments to any response plan
that does not meet the requirements of this sec-
tion;
(3) Approve any response plan that meets the
requirements of this section; and
(4) Review each response plan periodically
thereafter on a schedule established by the Re-
gional Administrator provided that the period be-
tween plan reviews does not exceed five years.
(d)(l) The owner or operator of a facility for
which a response plan is required under this part
shall revise and resubmit revised portions of the
response plan within 60 days of each facility
change that materially may affect the response to
a worst case discharge, including:
(i) A change in the facility's configuration that
materially alters the information included in the
response plan;
(ii) A change in the type of oil handled, stored,
or transferred that materially alters the required re-
sponse resources;
(iii) A material change in capabilities of the oil
spill removal organization(s) that provide equip-
ment and personnel to respond to discharges of oil
described in paragraph (h)(5) of this section;
(iv) A material change in the facility's spill pre-
vention and response equipment or emergency re-
sponse procedures; and
(v) Any other changes that materially affect the
implementation of the response plan.
(2) Except as provided in paragraph (d)(l) of
this section, amendments to personnel and tele-
phone number lists included in the response plan
and a change in the oil spill removal
organization(s) that does not result in a material
change in support capabilities do not require ap-
proval by the Regional Administrator. Facility
owners or operators shall provide a copy of such
changes to the Regional Administrator as the revi-
sions occur.
(3) The owner or operator of a facility that sub-
mits changes to a response plan as provided in
paragraph (d)(l) or (d)(2) of this section shall pro-
vide the EPA-issued facility identification number
(where one has been assigned) with the changes.
(4) The Regional Administrator shall review for
approval changes to a response plan submitted
pursuant to paragraph (d)(l) of this section for a
facility determined pursuant to paragraph (f)(3) of
this section to have the potential to cause signifi-
cant and substantial harm to the environment.
(e) If the owner or operator of a facility deter-
mines pursuant to paragraph (a)(2) of this section
that the facility could not, because of its location,
reasonably be expected to cause substantial harm
to the environment by discharging oil into or on
the navigable waters or adjoining shorelines, the
owner or operator shall complete and maintain at
the facility the certification form contained in Ap-
pendix C to this part and, in the event an alter-
native formula that is comparable to one contained
in Appendix C to this part is used to evaluate the
criterion in paragraph (f)(l)(ii)(B) or (f)(l)(ii)(C)
of this section, the owner or operator shall attach
documentation to the certification form that dem-
onstrates the reliability and analytical soundness of
the comparable formula and shall notify the Re-
gional Administrator in writing that an alternative
formula was used.
(f)(l) A facility could, because of its location,
reasonably be expected to cause substantial harm
to the environment by discharging oil into or on
11
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§112.20
the navigable waters or adjoining shorelines pursu-
ant to paragraph (a)(2) of this section, if it meets
any of the following criteria applied in accordance
with the flowchart contained in Attachment C-I to
Appendix C to this part:
(i) The facility transfers oil over water to or
from vessels and has a total oil storage capacity
greater than or equal to 42,000 gallons; or
(ii) The facility's total oil storage capacity is
greater than or equal to 1 million gallons, and one
of the following is true:
(A) The facility does not have secondary con-
tainment for each aboveground storage area suffi-
ciently large to contain the capacity of the largest
aboveground oil storage tank within each storage
area plus sufficient freeboard to allow for precipi-
tation;
(B) The facility is located at a distance (as cal-
culated using the appropriate formula in Appendix
C to this part or a comparable formula) such that
a discharge from the facility could cause injury to
fish and wildlife and sensitive environments. For
further description of fish and wildlife and sen-
sitive environments, see Appendices I, II, and III
of the "Guidance for Facility and Vessel Re-
sponse Plans: Fish and Wildlife and Sensitive En-
vironments" (see Appendix E to this part, section
10, for availability) and the applicable Area Con-
tingency Plan prepared pursuant to section
311(j)(4) of the Clean Water Act;
(C) The facility is located at a distance (as cal-
culated using the appropriate formula in Appendix
C to this part or a comparable formula) such that
a discharge from the facility would shut down a
public drinking water intake; or
(D) The facility has had a reportable oil spill in
an amount greater than or equal to 10,000 gallons
within the last 5 years.
(2)(i) To determine whether a facility could, be-
cause of its location, reasonably be expected to
cause substantial harm to the environment by dis-
charging oil into or on the navigable waters or ad-
joining shorelines pursuant to paragraph (b) of this
section, the Regional Administrator shall consider
the following:
(A) Type of transfer operation;
(B) Oil storage capacity;
(C) Lack of secondary containment;
(D) Proximity to fish and wildlife and sensitive
environments and other areas determined by the
Regional Administrator to possess ecological
value;
(E) Proximity to drinking water intakes;
(F) Spill history; and
(G) Other site-specific characteristics and envi-
ronmental factors that the Regional Administrator
determines to be relevant to protecting the envi-
ronment from harm by discharges of oil into or on
navigable waters or adjoining shorelines.
(ii) Any person, including a member of the pub-
lic or any representative from a Federal, State, or
local agency who believes that a facility subject to
this section could, because of its location, reason-
ably be expected to cause substantial harm to the
environment by discharging oil into or on the nav-
igable waters or adjoining shorelines may petition
the Regional Administrator to determine whether
the facility meets the criteria in paragraph (f)(2)(i)
of this section. Such petition shall include a dis-
cussion of how the factors in paragraph (f)(2)(i) of
this section apply to the facility in question. The
RA shall consider such petitions and respond in an
appropriate amount of time.
(3) To determine whether a facility could, be-
cause of its location, reasonably be expected to
cause significant and substantial harm to the envi-
ronment by discharging oil into or on the navi-
gable waters or adjoining shorelines, the Regional
Administrator may consider the factors in para-
graph (f)(2) of this section as well as the follow-
ing:
(i) Frequency of past spills;
(ii) Proximity to navigable waters;
(iii) Age of oil storage tanks; and
(iv) Other facility-specific and Region-specific
information, including local impacts on public
health.
(g)(l) All facility response plans shall be con-
sistent with the requirements of the National Oil
and Hazardous Substance Pollution Contingency
Plan (40 CFR part 300) and applicable Area Con-
tingency Plans prepared pursuant to section
311(j)(4) of the Clean Water Act. The facility re-
sponse plan should be coordinated with the local
emergency response plan developed by the local
emergency planning committee under section 303
of Title III of the Superfund Amendments and Re-
authorization Act of 1986 (42 U.S.C. 11001 et
seq.). Upon request, the owner or operator should
provide a copy of the facility response plan to the
local emergency planning committee or State
emergency response commission.
(2) The owner or operator shall review relevant
portions of the National Oil and Hazardous Sub-
stances Pollution Contingency Plan and applicable
Area Contingency Plan annually and, if necessary,
revise the facility response plan to ensure consist-
ency with these plans.
(3) The owner or operator shall review and up-
date the facility response plan periodically to re-
flect changes at the facility.
(h) A response plan shall follow the format of
the model facility-specific response plan included
in Appendix F to this part, unless an equivalent re-
sponse plan has been prepared to meet State or
other Federal requirements. A response plan that
does not follow the specified format in Appendix
F to this part shall have an emergency response
12
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§112.20
action plan as specified in paragraphs (h)(l) of
this section and be supplemented with a cross-ref-
erence section to identify the location of the ele-
ments listed in paragraphs (h)(2) through (h)(10)
of this section. To meet the requirements of this
part, a response plan shall address the following
elements, as further described in Appendix F to
this part:
(1) Emergency response action plan. The re-
sponse plan shall include an emergency response
action plan in the format specified in paragraphs
(h)(l)(i) through (viii) of this section that is main-
tained in the front of the response plan, or as a
separate document accompanying the response
plan, and that includes the following information:
(i) The identity and telephone number of a
qualified individual having full authority, includ-
ing contracting authority, to implement removal
actions;
(ii) The identity of individuals or organizations
to be contacted in the event of a discharge so that
immediate communications between the qualified
individual identified in paragraph (h)(l) of this
section and the appropriate Federal officials and
the persons providing response personnel and
equipment can be ensured;
(iii) A description of information to pass to re-
sponse personnel in the event of a reportable spill;
(iv) A description of the facility's response
equipment and its location;
(v) A description of response personnel capa-
bilities, including the duties of persons at the facil-
ity during a response action and their response
times and qualifications;
(vi) Plans for evacuation of the facility and a
reference to community evacuation plans, as ap-
propriate;
(vii) A description of immediate measures to se-
cure the source of the discharge, and to provide
adequate containment and drainage of spilled oil;
and
(viii) A diagram of the facility.
(2) Facility information. The response plan shall
identify and discuss the location and type of the
facility, the identity and tenure of the present
owner and operator, and the identity of the quali-
fied individual identified in paragraph (h)(l) of
this section.
(3) Information about emergency response. The
response plan shall include:
(i) The identity of private personnel and equip-
ment necessary to remove to the maximum extent
practicable a worst case discharge and other dis-
charges of oil described in paragraph (h)(5) of this
section, and to mitigate or prevent a substantial
threat of a worst case discharge (To identify re-
sponse resources to meet the facility response plan
requirements of this section, owners or operators
shall follow Appendix E to this part or, where not
appropriate, shall clearly demonstrate in the re-
sponse plan why use of Appendix E of this part
is not appropriate at the facility and make com-
parable arrangements for response resources);
(ii) Evidence of contracts or other approved
means for ensuring the availability of such person-
nel and equipment;
(iii) The identity and the telephone number of
individuals or organizations to be contacted in the
event of a discharge so that immediate commu-
nications between the qualified individual identi-
fied in paragraph (h)(l) of this section and the ap-
propriate Federal official and the persons provid-
ing response personnel and equipment can be en-
sured;
(iv) A description of information to pass to re-
sponse personnel in the event of a reportable spill;
(v) A description of response personnel capa-
bilities, including the duties of persons at the facil-
ity during a response action and their response
times and qualifications;
(vi) A description of the facility's response
equipment, the location of the equipment, and
equipment testing;
(vii) Plans for evacuation of the facility and a
reference to community evacuation plans, as ap-
propriate;
(viii) A diagram of evacuation routes; and
(ix) A description of the duties of the qualified
individual identified in paragraph (h)(l) of this
section, that include:
(A) Activate internal alarms and hazard commu-
nication systems to notify all facility personnel;
(B) Notify all response personnel, as needed;
(C) Identify the character, exact source, amount,
and extent of the release, as well as the other
items needed for notification;
(D) Notify and provide necessary information to
the appropriate Federal, State, and local authorities
with designated response roles, including the Na-
tional Response Center, State Emergency Re-
sponse Commission, and Local Emergency Plan-
ning Committee;
(E) Assess the interaction of the spilled sub-
stance with water and/or other substances stored at
the facility and notify response personnel at the
scene of that assessment;
(F) Assess the possible hazards to human health
and the environment due to the release. This as-
sessment must consider both the direct and indi-
rect effects of the release (i.e., the effects of any
toxic, irritating, or asphyxiating gases that may be
generated, or the effects of any hazardous surface
water runoffs from water or chemical agents used
to control fire and heat-induced explosion);
(G) Assess and implement prompt removal ac-
tions to contain and remove the substance re-
leased;
13
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§112.20
(H) Coordinate rescue and response actions as
previously arranged with all response personnel;
(I) Use authority to immediately access com-
pany funding to initiate cleanup activities; and
(J) Direct cleanup activities until properly re-
lieved of this responsibility.
(4) Hazard evaluation. The response plan shall
discuss the facility's known or reasonably identifi-
able history of discharges reportable under 40
CFR part 110 for the entire life of the facility and
shall identify areas within the facility where dis-
charges could occur and what the potential effects
of the discharges would be on the affected envi-
ronment. To assess the range of areas potentially
affected, owners or operators shall, where appro-
priate, consider the distance calculated in para-
graph (f)(l)(ii) of this section to determine wheth-
er a facility could, because of its location, reason-
ably be expected to cause substantial harm to the
environment by discharging oil into or on the nav-
igable waters or adjoining shorelines.
(5) Response planning levels. The response plan
shall include discussion of specific planning sce-
narios for:
(i) A worst case discharge, as calculated using
the appropriate worksheet in Appendix D to this
part. In cases where the Regional Administrator
determines that the worst case discharge volume
calculated by the facility is not appropriate, the
Regional Administrator may specify the worst case
discharge amount to be used for response planning
at the facility. For complexes, the worst case plan-
ning quantity shall be the larger of the amounts
calculated for each component of the facility;
(ii) A discharge of 2,100 gallons or less, pro-
vided that this amount is less than the worst case
discharge amount. For complexes, this planning
quantity shall be the larger of the amounts cal-
culated for each component of the facility; and
(iii) A discharge greater than 2,100 gallons and
less than or equal to 36,000 gallons or 10 percent
of the capacity of the largest tank at the facility,
whichever is less, provided that this amount is less
than the worst case discharge amount. For com-
plexes, this planning quantity shall be the larger of
the amounts calculated for each component of the
facility.
(6) Discharge detection systems. The response
plan shall describe the procedures and equipment
used to detect discharges.
(7) Plan implementation. The response plan
shall describe:
(i) Response actions to be carried out by facility
personnel or contracted personnel under the re-
sponse plan to ensure the safety of the facility and
to mitigate or prevent discharges described in
paragraph (h)(5) of this section or the substantial
threat of such discharges;
(ii) A description of the equipment to be used
for each scenario;
(iii) Plans to dispose of contaminated cleanup
materials; and
(iv) Measures to provide adequate containment
and drainage of spilled oil.
(8) Self-inspection, drills/exercises, and re-
sponse training. The response plan shall include:
(i) A checklist and record of inspections for
tanks, secondary containment, and response equip-
ment;
(ii) A description of the drill/exercise program
to be carried out under the response plan as de-
scribed in §112.21;
(iii) A description of the training program to be
carried out under the response plan as described in
§112.21; and
(iv) Logs of discharge prevention meetings,
training sessions, and drills/exercises. These logs
may be maintained as an annex to the response
plan.
(9) Diagrams. The response plan shall include
site plan and drainage plan diagrams.
(10) Security systems. The response plan shall
include a description of facility security systems.
(11) Response plan cover sheet. The response
plan shall include a completed response plan cover
sheet provided in Section 2.0 of Appendix F to
this part.
(i)(l) In the event the owner or operator of a fa-
cility does not agree with the Regional Adminis-
trator's determination that the facility could, be-
cause of its location, reasonably be expected to
cause substantial harm or significant and substan-
tial harm to the environment by discharging oil
into or on the navigable waters or adjoining shore-
lines, or that amendments to the facility response
plan are necessary prior to approval, such as
changes to the worst case discharge planning vol-
ume, the owner or operator may submit a request
for reconsideration to the Regional Administrator
and provide additional information and data in
writing to support the request. The request and ac-
companying information must be submitted to the
Regional Administrator within 60 days of receipt
of notice of the Regional Administrator's original
decision. The Regional Administrator shall con-
sider the request and render a decision as rapidly
as practicable.
(2) In the event the owner or operator of a facil-
ity believes a change in the facility's classification
status is warranted because of an unplanned event
or change in the facility's characteristics (i.e., sub-
stantial harm or significant and substantial harm),
the owner or operator may submit a request for re-
consideration to the Regional Administrator and
provide additional information and data in writing
to support the request. The Regional Administrator
14
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Pt. 112, App. A
shall consider the request and render a decision as
rapidly as practicable.
(3) After a request for reconsideration under
paragraph (i)(l) or (i)(2) of this section has been
denied by the Regional Administrator, an owner or
operator may appeal a determination made by the
Regional Administrator. The appeal shall be made
to the EPA Administrator and shall be made in
writing within 60 days of receipt of the decision
from the Regional Administrator that the request
for reconsideration was denied. A complete copy
of the appeal must be sent to the Regional Admin-
istrator at the time the appeal is made. The appeal
shall contain a clear and concise statement of the
issues and points of fact in the case. It also may
contain additional information from the owner or
operator, or from any other person. The EPA Ad-
ministrator may request additional information
from the owner or operator, or from any other per-
son. The EPA Administrator shall render a deci-
sion as rapidly as practicable and shall notify the
owner or operator of the decision.
[59 FR 34098, July 1, 1994]
§112.21 Facility response training and
drills/exercises.
(a) The owner or operator of any facility re-
quired to prepare a facility response plan under
§ 112.20 shall develop and implement a facility re-
sponse training program and a drill/exercise pro-
gram that satisfy the requirements of this section.
The owner or operator shall describe the programs
in the response plan as provided in § 112.20(h)(8).
(b) The facility owner or operator shall develop
a facility response training program to train those
personnel involved in oil spill response activities.
It is recommended that the training program be
based on the USCG's Training Elements for Oil
Spill Response, as applicable to facility operations.
An alternative program can also be acceptable
subject to approval by the Regional Administrator.
(1) The owner or operator shall be responsible
for the proper instruction of facility personnel in
the procedures to respond to discharges of oil and
in applicable oil spill response laws, rules, and
regulations.
(2) Training shall be functional in nature ac-
cording to job tasks for both supervisory and non-
supervisory operational personnel.
(3) Trainers shall develop specific lesson plans
on subject areas relevant to facility personnel in-
volved in oil spill response and cleanup.
(c) The facility owner or operator shall develop
a program of facility response drills/exercises, in-
cluding evaluation procedures. A program that fol-
lows the National Preparedness for Response Ex-
ercise Program (PREP) (see Appendix E to this
part, section 10, for availability) will be deemed
satisfactory for purposes of this section. An alter-
native program can also be acceptable subject to
approval by the Regional Administrator.
[59 FR 34101, July 1, 1994]
APPENDIX A TO PART 112—MEMORANDUM OF
UNDERSTANDING BETWEEN THE SECRETARY
OF TRANSPORTATION AND THE ADMINIS-
TRATOR OF THE ENVIRONMENTAL PROTEC-
TION AGENCY
SECTION II—DEFINITIONS
The Environmental Protection Agency and the Depart-
ment of Transportation agree that for the purposes of Ex-
ecutive Order 11548, the term:
(1) Non-transportation-related onshore and offshore fa-
cilities means:
(A) Fixed onshore and offshore oil well drilling facili-
ties including all equipment and appurtenances related
thereto used in drilling operations for exploratory or de-
velopment wells, but excluding any terminal facility, unit
or process integrally associated with the handling or trans-
ferring of oil in bulk to or from a vessel.
(B) Mobile onshore and offshore oil well drilling plat-
forms, barges, trucks, or other mobile facilities including
all equipment and appurtenances related thereto when
such mobile facilities are fixed in position for the purpose
of drilling operations for exploratory or development
wells, but excluding any terminal facility, unit or process
integrally associated with the handling or transferring of
oil in bulk to or from a vessel.
(C) Fixed onshore and offshore oil production struc-
tures, platforms, derricks, and rigs including all equipment
and appurtenances related thereto, as well as completed
wells and the wellhead separators, oil separators, and stor-
age facilities used in the production of oil, but excluding
any terminal facility, unit or process integrally associated
with the handling or transferring of oil in bulk to or from
a vessel.
(D) Mobile onshore and offshore oil production facili-
ties including all equipment and appurtenances related
thereto as well as completed wells and wellhead equip-
ment, piping from wellheads to oil separators, oil separa-
tors, and storage facilities used in the production of oil
when such mobile facilities are fixed in position for the
purpose of oil production operations, but excluding any
terminal facility, unit or process integrally associated with
the handling or transferring of oil in bulk to or from a
vessel.
(E) Oil refining facilities including all equipment and
appurtenances related thereto as well as in-plant process-
ing units, storage units, piping, drainage systems and
waste treatment units used in the refining of oil, but ex-
cluding any terminal facility, unit or process integrally as-
sociated with the handling or transferring of oil in bulk
to or from a vessel.
(F) Oil storage facilities including all equipment and
appurtenances related thereto as well as fixed bulk plant
storage, terminal oil storage facilities, consumer storage,
pumps and drainage systems used in the storage of oil,
but excluding inline or breakout storage tanks needed for
the continuous operation of a pipeline system and any ter-
minal facility, unit or process integrally associated with
the handling or transferring of oil in bulk to or from a
vessel.
15
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Pt. 112, App. B
(G) Industrial, commercial, agricultural or public facili- APPENDIX B TO PART 112—MEMORANDUM OF
ties which use and store oil, but excluding any terminal UNDERSTANDING AMONG THE SECRETARY OF
facility, unit or process integrally associated with the han- THE INTERIOR, SECRETARY OF TRANSPOR-
dlmg or transferring of oil in bulk to or from a vessel. TATION, AND ADMINISTRATOR OF THE ENVI-
(H) Waste treatment facilities including m-plant pipe- RONMENTAL PROTECTION AGENCY
lines, effluent discharge lines, and storage tanks, but ex-
cluding waste treatment facilities located on vessels and PURPOSE
terminal storage tanks and appurtenances for the reception
of oily ballast water or tank washings from vessels and Thls Memorandum of Understanding (MOU) estab-
. , i , , f rv-, ,• , hshes the lunsdictional responsibilities lor onshore iacili-
associated systems used ior on-loading vessels. ..,,. .,. ...,., ,.,,,,, ,
_ , , ties, including pipelines, pursuant to section 311 (i)(l)(c),
(I) Loading racks, transfer hoses, loading arms and ^^ ^ (])(6)(A) rf ^ clean Wato Act (CWA)> as
other equipment which are appurtenant to a nontrans- amended by the Oll Pollution Act of 1990 (Public Law
portation-related facility or terminal facility and which are 10i_380). The Secretary of the Department of the Interior
used to transfer oil in bulk to or from highway vehicles (DOI), Secretary of the Department of Transportation
or railroad cars. (DOT), and Administrator of the Environmental Protec-
(J) Highway vehicles and railroad cars which are used tion Agency (EPA) agree to the division of responsibil-
for the transport of oil exclusively within the confines of ities set forth below for spill prevention and control, re-
a nontransportation-related facility and which are not in- sponse planning, and equipment inspection activities pur-
tended to transport oil in interstate or intrastate com- suant to those provisions.
merce.
(K) Pipeline systems which are used for the transport BACKGROUND
of oil exclusively within the confines of a nontransporta- Executive Order (E.O.) 12777 (56 FR 54757) delegates
tion-related facility or terminal facility and which are not to DOI, DOT, and EPA various responsibilities identified
intended to transport oil in interstate or intrastate com- in section 311(j) of the CWA. Sections 2(b)(3), 2(d)(3),
merce, but excluding pipeline systems used to transfer oil and 2(e)(3) of E.O. 12777 assigned to DOI spill preven-
in bulk to or from a vessel. tion and control, contingency planning, and equipment in-
(2) Transportation-related onshore and offshore facili- spection activities associated with offshore facilities. Sec-
ties means' tion 311(a)(ll) defines the term "offshore facility" to in-
(A) Onshore and offshore terminal facilities including clude facilities of any kind located in, on, or under navi-
transfer hoses, loading arms and other equipment and ap- 8able waters of the Umted States- BY usmg thls defml-
purtenances used for the purpose of handling or transfer- tlon' the traditional DOI role of regulating facilities on the
ring oil in bulk to or from a vessel as well as storage Outer Continental Shelf is expanded by E.O. 12777 to m-
tanks and appurtenances for the reception of oily ballast ^4 ' nVerS> """"""^ ^
water or tank washings from vessels, but excluding termi-
nal waste treatment facilities and terminal oil storage fa- RESPONSIBILITIES
cilities.
(B) Transfer hoses, loading arms and other equipment Pursuant to section 2(i) of E.O. 12777, DOI redele-
appurtenant to a non-transportation-related facility which §ates> and EPA and DOT a§ree to assume> the functlons
is used to transfer oil in bulk to or from a vessel vested m DO1 * sectlons 2^> 2(dX3)> and 2(eX3) of
,_, T , . , , ,„, . E.O. 12777 as set forth below. For purposes of this MOU,
(C) Interstate and intrastate onshore and onshore pipe- Al lt , ,. ,, , ,, , , ~ , -4.101
,. .,,- , 11 the term coast line shall be defined as in the Sub-
line systems including pumps and appurtenances related merged Lmds Act (43 v s Q 13Q1(c)) ^ mem ..^ lme
thereto as well as m-lme or breakout storage tanks needed of ordmary [ow water along that portlon of the CQast
for the continuous operation of a pipeline system, and whlch ls m dlrect contact wlth the Qpen sea and the lme
pipelines from onshore and offshore oil production facili- markmg the seaward limit of inland waters."
ties, but excluding onshore and offshore piping from L To EpA> DOI redelegates responsibility for non-
wellheads to oil separators and pipelines which are used transportation-related offshore facilities located landward
for the transport of oil exclusively within the confines of of the coast line
a nontransportation-related facility or terminal facility and 2. To DOT, DOI redelegates responsibility for transpor-
which are not intended to transport oil m interstate or tation-related facilities, including pipelines, located land-
intrastate commerce or to transfer oil in bulk to or from ward of the coast line. The DOT retains jurisdiction for
a vessel. deepwater ports and their associated seaward pipelines, as
(D) Highway vehicles and railroad cars which are used delegated by E.O. 12777.
for the transport of oil in interstate or intrastate commerce 3. The DOI retains jurisdiction over facilities, including
and the equipment and appurtenances related thereto, and pipelines, located seaward of the coast line, except for
equipment used for the fueling of locomotive units, as deepwater ports and associated seaward pipelines dele-
well as the nghts-of-way on which they operate. Excluded gated by E.O. 12777 to DOT.
are highway vehicles and railroad cars and motive power
used exclusively within the confines of a nontransporta-
tion-related facility or terminal facility and which are not This MOU is effective on the date of the final execu-
intended for use in interstate or intrastate commerce. tion by the indicated signatories.
16
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Pt. 112, App. C
LIMITATIONS
1. The DOI, DOT, and EPA may agree in writing to
exceptions to this MOU on a facility-specific basis. Af-
fected parties will receive notification of the exceptions.
2. Nothing in this MOU is intended to replace, super-
sede, or modify any existing agreements between or
among DOI, DOT, or EPA.
MODIFICATION AND TERMINATION
Any party to this agreement may propose modifications
by submitting them in writing to the heads of the other
agency/department. No modification may be adopted ex-
cept with the consent of all parties. All parties shall indi-
cate their consent to or disagreement with any proposed
modification within 60 days of receipt. Upon the request
of any party, representatives of all parties shall meet for
the purpose of considering exceptions or modifications to
this agreement. This MOU may be terminated only with
the mutual consent of all parties.
Dated: November 8, 1993.
Bruce Babbitt,
Secretary of the Interior.
Dated: December 14, 1993.
Federico Pena,
Secretary of Transportation.
Dated: February 3, 1994.
Carol M. Browner,
Administrator, Environmental Protection Agency.
[59 FR 34102, July 1, 1994]
APPENDIX C TO PART 112—SUBSTANTIAL HARM
CRITERIA
1.0 Introduction
The flowchart provided in Attachment C-I to this ap-
pendix shows the decision tree with the criteria to identify
whether a facility "could reasonably be expected to cause
substantial harm to the environment by discharging into
or on the navigable waters or adjoining shorelines." In
addition, the Regional Administrator has the discretion to
identify facilities that must prepare and submit facility-
specific response plans to EPA.
1.1 Definitions
1.1.1 Great Lakes means Lakes Superior, Michigan,
Huron, Erie, and Ontario, their connecting and tributary
waters, the Saint Lawrence River as far as Saint Regis,
and adjacent port areas.
1.1.2 Higher Volume Port Areas include
(1) Boston, MA;
(2) New York, NY;
(3) Delaware Bay and River to Philadelphia, PA;
(4) St. Croix, VI;
(5) Pascagoula, MS;
(6) Mississippi River from Southwest Pass, LA to
Baton Rouge, LA;
(7) Louisiana Offshore Oil Port (LOOP), LA;
(8) Lake Charles, LA;
(9) Sabme-Neches River, TX;
(10) Galveston Bay and Houston Ship Channel, TX;
(11) Corpus Christi, TX;
(12) Los Angeles/Long Beach Harbor, CA;
(13) San Francisco Bay, San Pablo Bay, Carquinez
Strait, and Suisun Bay to Antioch, CA;
(14) Straits of Juan de Fuca from Port Angeles, WA
to and including Puget Sound, WA;
(15) Prince William Sound, AK; and
(16) Others as specified by the Regional Administrator
for any EPA Region.
1.1.3 Inland Area means the area shoreward of the
boundary lines defined in 46 CFR part 7, except in the
Gulf of Mexico. In the Gulf of Mexico, it means the area
shoreward of the lines of demarcation (COLREG lines as
defined in 33 CFR 80.740—80.850). The inland area does
not include the Great Lakes.
1.1.4 Rivers and Canals means a body of water con-
fined within the inland area, including the Intracoastal
Waterways and other waterways artificially created for
navigating that have project depths of 12 feet or less.
2.0 Description of Screening Criteria for the Substantial
Harm Flowchart
A facility that has the potential to cause substantial
harm to the environment in the event of a discharge must
prepare and submit a facility-specific response plan to
EPA in accordance with Appendix F to this part. A de-
scription of the screening criteria for the substantial harm
flowchart is provided below:
2.1 Non-Transportation-Related Facilities With a
Total Oil Storage Capacity Greater Than or Equal to
42,000 Gallons Where Operations Include Over-Water
Transfers of Oil. A non-transportation-related facility with
a total oil storage capacity greater than 42,000 gallons
that transfers oil over water to or from vessels must sub-
mit a response plan to EPA. Daily oil transfer operations
at these types of facilities occur between barges and ves-
sels and onshore bulk storage tanks over open water.
These facilities are located adjacent to navigable water.
2.2 Lack of Adequate Secondary Containment at Fa-
cilities With a Total Oil Storage Capacity Greater Than
or Equal to 1 Million Gallons. Any facility with a total
oil storage capacity greater than or equal to 1 million gal-
lons without secondary containment sufficiently large to
contain the capacity of the largest aboveground oil storage
tank within each area plus sufficient freeboard to allow
for precipitation must submit a response plan to EPA.
Secondary containment structures that meet the standard
of good engineering practice for the purposes of this part
include berms, dikes, retaining walls, curbing, culverts,
gutters, or other drainage systems.
2.3 Proximity to Fish and Wildlife and Sensitive Envi-
ronments at Facilities With a Total Oil Storage Capacity
Greater Than or Equal to 1 Million Gallons. A facility
with a total oil storage capacity greater than or equal to
1 million gallons must submit its response plan if it is lo-
cated at a distance such that a discharge from the facility
could cause injury (as defined at 40 CFR 112.2) to fish
and wildlife and sensitive environments. For further de-
scription of fish and wildlife and sensitive environments,
see Appendices I, II, and III to DOC/NOAA's "Guidance
for Facility and Vessel Response Plans: Fish and Wildlife
and Sensitive Environments" (see Appendix E to this
part, section 10, for availability) and the applicable Area
Contingency Plan. Facility owners or operators must de-
termine the distance at which an oil spill could cause in-
jury to fish and wildlife and sensitive environments using
the appropriate formula presented in Attachment C-III to
this appendix or a comparable formula.
2.4 Proximity to Public Drinking Water Intakes at
Facilities with a Total Storage Oil Capacity Greater Than
or Equal to 1 Million Gallons. A facility with a total stor-
17
-------
Pt. 112, App. C
age capacity greater than or equal to 1 million gallons
must submit its response plan if it is located at a distance
such that a discharge from the facility would shut down
a public drinking water intake, which is analogous to a
public water system as described at 40 CFR 143.2(c). The
distance at which an oil spill from an SPCC-regulated fa-
cility would shut down a public drinking water intake
shall be calculated using the appropriate formula pre-
sented in Attachment C-III to this appendix or a com-
parable formula.
2.5 Facilities That Have Experienced Reportable Oil
Spills in an Amount Greater Than or Equal to 10,000
Gallons Within the Past 5 Years and That Have a Total
Oil Storage Capacity Greater Than or Equal to 1 Million
Gallons. A facility's oil spill history within the past 5
years shall be considered in the evaluation for substantial
harm. Any facility with a total oil storage capacity greater
than or equal to 1 million gallons that has experienced a
reportable oil spill in an amount greater than or equal to
10,000 gallons within the past 5 years must submit a re-
sponse plan to EPA.
3.0 Certification for Facilities That Do Not Pose
Substantial Harm
If the facility does not meet the substantial harm cri-
teria listed in Attachment C-I to this appendix, the owner
or operator shall complete and maintain at the facility the
certification form contained in Attachment C-II to this
appendix. In the event an alternative formula that is com-
parable to the one in this appendix is used to evaluate the
substantial harm criteria, the owner or operator shall at-
tach documentation to the certification form that dem-
onstrates the reliability and analytical soundness of the
comparable formula and shall notify the Regional Admin-
istrator in writing that an alternative formula was used.
4.0 References
Chow, V.T. 1959. Open Channel Hydraulics. McGraw
Hill.
USCG IFR (58 FR 7353, February 5, 1993). This docu-
ment is available through EPA's rulemaking docket as
noted in Appendix E to this part, section 10.
ATTACHMENTS TO APPENDIX C
EC01MR92.009
ATTACHMENT C-II—CERTIFICATION OF THE
APPLICABILITY OF THE SUBSTANTIAL HARM CRITERIA
Facility Name:
Facility Address:
1. Does the facility transfer oil over water to or from
vessels and does the facility have a total oil storage ca-
pacity greater than or equal to 42,000 gallons?
Yes No
2. Does the facility have a total oil storage capacity
greater than or equal to 1 million gallons and does the fa-
cility lack secondary containment that is sufficiently large
to contain the capacity of the largest aboveground oil
storage tank plus sufficient freeboard to allow for precipi-
tation within any aboveground oil storage tank area?
Yes No
3. Does the facility have a total oil storage capacity
greater than or equal to 1 million gallons and is the facil-
ity located at a distance (as calculated using the appro-
priate formula in Attachment C-III to this appendix or a
comparable formula r) such that a discharge from the fa-
cility could cause injury to fish and wildlife and sensitive
environments? For further description of fish and wildlife
and sensitive environments, see Appendices I, II, and III
to DOC/NOAA's "Guidance for Facility and Vessel Re-
sponse Plans: Fish and Wildlife and Sensitive Environ-
ments" (see Appendix E to this part, section 10, for
availability) and the applicable Area Contingency Plan.
Yes No
4. Does the facility have a total oil storage capacity
greater than or equal to 1 million gallons and is the facil-
ity located at a distance (as calculated using the appro-
priate formula in Attachment C-III to this appendix or a
comparable formula *) such that a discharge from the fa-
cility would shut down a public drinking water intake2 ?
Yes No
5. Does the facility have a total oil storage capacity
greater than or equal to 1 million gallons and has the fa-
cility experienced a reportable oil spill in an amount
greater than or equal to 10,000 gallons within the last 5
years?
Yes No
Certification
I certify under penalty of law that I have personally ex-
amined and am familiar with the information submitted in
this document, and that based on my inquiry of those in-
dividuals responsible for obtaining this information, I be-
lieve that the submitted information is true, accurate, and
complete.
Signature
Name (please type or print)
Title
Date
ATTACHMENT C-III—CALCULATION OF THE PLANNING
DISTANCE
1.0 Introduction
1.1 The facility owner or operator must evaluate
whether the facility is located at a distance such that a
discharge from the facility could cause injury to fish and
wildlife and sensitive environments or disrupt operations
at a public drinking water intake. To quantify that dis-
tance, EPA considered oil transport mechanisms over land
and on still, tidal influence, and moving navigable waters.
EPA has determined that the primary concern for calcula-
tion of a planning distance is the transport of oil in navi-
gable waters during adverse weather conditions. There-
fore, two formulas have been developed to determine dis-
tances for planning purposes from the point of discharge
at the facility to the potential site of impact on moving
and still waters, respectively. The formula for oil trans-
port on moving navigable water is based on the velocity
of the water body and the time interval for arrival of re-
1 If a comparable formula is used, documentation of the
reliability and analytical soundness of the comparable for-
mula must be attached to this form.
2 For the purposes of 40 CFR part 112, public drinking
water intakes are analogous to public water systems as
described at 40 CFR 143.2(c).
18
-------
Pt. 112, App. C
sponse resources. The still water formula accounts for the and a conversion factor (c). The velocity, v, is determined
spread of discharged oil over the surface of the water. by using the Chezy-Manning equation, which, in this
The method to determine oil transport on tidal influence case, models the flood flow rate of water in open chan-
areas is based on the type of oil spilled and the distance nels. The Chezy-Manning equation contains three vari-
down current during ebb tide and up current during flood ables which must be determined by facility owners or op-
tide to the point of maximum tidal influence. erators. Manning's Roughness Coefficient (for flood flow
1.2 EPA's formulas were designed to be simple to rates), n, can be determined from Table 1 of this attach-
use. However, facility owners or operators may calculate ment. The hydraulic radius, r, can be estimated using the
planning distances using more sophisticated formulas, average mid-channel depth from charts provided by the
which take into account broader scientific or engineering sources listed in Table 2 of this attachment. The average
principles, or local conditions. Such comparable formulas slope of the river, s, can be determined using topographic
may result in different planning distances than EPA's for- maps that can be ordered from the U.S. Geological Sur-
mulas. In the event that an alternative formula that is vey, as listed in Table 2 of this attachment.
comparable to one contained in this appendix is used to 1.6 Table 3 of this attachment contains specified time
evaluate the criterion in 40 CFR 112.20(fl(l)(ii)(B) or intervals for estimating the arrival of response resources
(fl(l)(ii)(C), the owner or operator shall attach docu- at the scene of a discharge. Assuming no prior planning,
mentation to the response plan cover sheet contained in response resources should be able to arrive at the dis-
Appendix F to this part that demonstrates the reliability charge site within 12 hours of the discovery of any oil
and analytical soundness of the alternative formula and discharge in Higher Volume Port Areas and within 24
shall notify the Regional Administrator in writing that an hours in Great Lakes and all other river, canal, inland,
alternative formula was used.1 and nearshore areas. The specified time intervals in Table
1.3 A regulated facility may meet the criteria for the 3 of Appendix C are to be used only to aid in the identi-
potential to cause substantial harm to the environment fication of whether a facility could cause substantial harm
without having to perform a planning distance calculation. to the environment. Once it is determined that a plan
For facilities that meet the substantial harm criteria be- must be developed for the facility, the owner or operator
cause of inadequate secondary containment or oil spill shall reference Appendix E to this part to determine ap-
history, as listed in the flowchart in Attachment C-I to propriate resource levels and response times. The speci-
this appendix, calculation of the planning distance is un- fied time intervals of this appendix include a 3-hour time
necessary. For facilities that do not meet the substantial period for deployment of boom and other response equip-
harm criteria for secondary containment or oil spill his- ment. The Regional Administrator may identify additional
tory as listed in the flowchart, calculation of a planning areas as appropriate.
distance for proximity to fish and wildlife and sensitive
environments and public drinking water intakes is re- 2 0 Oil Transport on Moving Navigable Waters
quired, unless it is clear without performing the calcula- ^ The fadH Qwner Qr tor must use
tion (e.g., the facility is located in a wetland) that these ,,-,,•,-, ,,,- ,
areas would be impacted the following formula or a comparable formula as
1.4 A facility owner or operator who must perform a described in § 112.20(a)(3) to calculate the plan-
planning distance calculation on navigable water is only nmg distance for oil transport on moving navi-
required to do so for the type of navigable water condi- gable water:
tions (i.e., moving water, still water, or tidal- influenced H- t • h
water) applicable to the facility. If a facility owner or op- . . .. . , <*••,• • 1 • 1-1
, , ; . ,, , ,1 i_ r -11 d: the distance downstream from a facility within which
erator determines that more than one type of navigable ,. . . .. ..., . . . . ...
... ,.,,,, .,. fish and wildlife and sensitive environments could be
water condition applies, then the facility owner or opera- . . , .
. r- 1-1- 11- miured or a public drinking water intake would be
tor is required to perform a planning distance calculation . . . . ,.,,., ,. ., ,
r , -it , , jT,. • ..1 .. ,. shut down in the event of an oil discharge (in miles);
for each navigable water type to determine the greatest , , . _ ,.,.,, ~.
, ,. , ,, , -, , , j A ,, v: the velocity of the river/navigable water of concern (in
single distance that oil may be transported. As a result, N J , . , , , . .
the final planning distance for oil transport on water shall ft/sec) as determmed bY Chezy-Manning s equation
be the greatest individual distance rather than a summa- (see below and Tables ! and 2 of thls Attachment);
tion of each calculated planning distance. t: the tlme mterval specified in Table 3 based upon the
1.5 The planning distance formula for transport on ^e of water body and locatlon (m houn* and
moving waterways contains three variables: the velocity c: constant conversion factor 0.68 sec.mile/hr.ft (3600
of the navigable water (v), the response time interval (t), sec/hr * 528° ft/mlle)-
2.2 Chezy-Manning's equation is used to determine ve-
!For persistent oils or non-persistent oils, a worst case locity.
trajectory model (i.e., an alternative formula) may be sub- v=1.5/n x r% x sVi; where
stituted for the distance formulas described in still, mov- v=the velocity of the river of concern (in ft/sec);
mg, and tidal waters, subject to Regional Administrator's n=Mannmg's Roughness Coefficient from Table 1 of this
review of the model. An example of an alternative for- attachment;
mula that is comparable to the one contained in this ap- r=the hydraulic radius; the hydraulic radius can be ap-
pendix would be a worst case trajectory calculation based proximated for parabolic channels by multiplying the
on credible adverse winds, currents, and/or river stages, average mid-channel depth of the river (in feet) by
over a range of seasons, weather conditions, and river 0.667 (sources for obtaining the mid-channel depth
stages. Based on historical information or a spill trajec- are listed in Table 2 of this attachment); and
tory model, the Agency may require that additional fish s=the average slope of the river (unitless) obtained from
and wildlife and sensitive environments or public drinking U.S. Geological Survey topographic maps at the ad-
water intakes also be protected. dress listed in Table 2 of this attachment.
19
-------
Pt. 112, App. C
TABLE 1 .—MANNING'S ROUGHNESS COEFFICIENT
FOR NATURAL STREAMS
[NOTE: Coefficients are presented for high flow rates at or
near flood stage.]
Stream description
Minor Streams (Top Width <100 ft.)
Clean:
Straight
Sluggish (Weedy, deep pools):
Trees and/or brush
Major Streams (Top Wdth >100 ft.)
Regular section:
(No boulders/brush)
Irregular section:
(Brush)
Rough-
ness co-
efficient
(n)
003
004
006
0.10
0.035
005
TABLE 2.—SOURCES OF R AND s FOR THE
CHEZY-MANNING EQUATION
All of the charts and related publications for
navigational waters may be ordered from:
Distribution Branch
(N/CG33)
National Ocean Service
Riverdale, Maryland 20737-1199
Phone: (301)436-6990
There will be a charge for materials or-
dered and a VISA or Mastercard will be
accepted.
The mid-channel depth to be used in the cal-
culation of the hydraulic radius (r) can be
obtained directly from the following
sources:
Charts of Canadian Coastal and Great
Lakes Waters:
Canadian Hydrographic Service
Department of Fisheries and Oceans Insti-
tute
P.O. Box 8080
1675 Russell Road
Ottawa, Ontario KIG 3H6
Canada
Phone: (613)998-4931
Charts and Maps of Lower Mississippi
River
(Gulf of Mexico to Ohio River and St.
Francis, White, Big Sunflower,
Atchafalaya, and other rivers):
U.S. Army Corps of Engineers
Vicksburg District
P.O. Box 60
Vicksburg, Mississippi 39180
Phone: (601) 634-5000
Charts of Upper Mississippi River and Illi-
nois Waterway to Lake Michigan:
U.S. Army Corps of Engineers
TABLE 2.—SOURCES OF R AND s FOR THE
CHEZY-MANNING EQUATION—Continued
Rock Island District
P.O. Box 2004
Rock Island, Illinois 61204
Phone: (309) 794-5552
Charts of Missouri River:
U.S. Army Corps of Engineers
Omaha District
6014 U.S. Post Office and Courthouse
Omaha, Nebraska 68102
Phone: (402)221-3900
Charts of Ohio River:
U.S. Army Corps of Engineers
Ohio River Division
P.O. Box 1159
Cincinnati, Ohio 45201
Phone: (513) 684-3002
Charts of Tennessee Valley Authority Res-
ervoirs, Tennessee River and Tribu-
taries:
Tennessee Valley Authority
Maps and Engineering Section
416 Union Avenue
Knoxville, Tennessee 37902
Phone: (615)632-2921
Charts of Black Warrior River, Alabama
River, Tombigbee River, Apalachicola
River and Pearl River:
U.S. Army Corps of Engineers
Mobile District
P.O. Box 2288
Mobile, Alabama 36628-0001
Phone: (205)690-2511
The average slope of the river (s) may be
obtained from topographic maps:
U.S. Geological Survey
Map Distribution
Federal Center
Bldg. 41
Box 25286
Denver, Colorado 80225
Additional information can be obtained from
the following sources:
1. The State's Department of Natural Re-
sources (DNR) or the State's Aids to
Navigation office;
2. A knowledgeable local marina operator;
or
3. A knowledgeable local water authority
(e.g., State water commission)
2.3 The average slope of the river (s) can be deter-
mined from the topographic maps using the following
steps:
(1) Locate the facility on the map.
(2) Find the Normal Pool Elevation at the point of dis-
charge from the facility into the water (A).
20
-------
Pt. 112, App. C
(3) Find the Normal Pool Elevation of the public drink-
ing water intake or fish and wildlife and sensitive envi-
ronment located downstream (B) (Note: The owner or op-
erator should use a minimum of 20 miles downstream as
a cutoff to obtain the average slope if the location of a
specific public drinking water intake or fish and wildlife
and sensitive environment is unknown).
(4) If the Normal Pool Elevation is not available, the
elevation contours can be used to find the slope. Deter-
mine elevation of the water at the point of discharge from
the facility (A). Determine the elevation of the water at
the appropriate distance downstream (B). The formula
presented below can be used to calculate the slope.
(5) Determine the distance (in miles) between the facil-
ity and the public drinking water intake or fish and wild-
life and sensitive environments (C).
(6) Use the following formula to find the slope, which
will be a unitless value: Average Slope=[(A-B) (ft)/C
(miles)] X [1 mile/5280 feet]
2.4 If it is not feasible to determine the slope and
mid-channel depth by the Chezy-Manning equation, then
the river velocity can be approximated on- site. A specific
length, such as 100 feet, can be marked off along the
shoreline. A float can be dropped into the stream above
the mark, and the time required for the float to travel the
distance can be used to determine the velocity in feet per
second. However, this method will not yield an average
velocity for the length of the stream, but a velocity only
for the specific location of measurement. In addition, the
flow rate will vary depending on weather conditions such
as wind and rainfall. It is recommended that facility own-
ers or operators repeat the measurement under a variety
of conditions to obtain the most accurate estimate of the
surface water velocity under adverse weather conditions.
2.5 The planning distance calculations for moving and
still navigable waters are based on worst case discharges
of persistent oils. Persistent oils are of concern because
they can remain in the water for significant periods of
time and can potentially exist in large quantities down-
stream. Owners or operators of facilities that store persist-
ent as well as non-persistent oils may use a comparable
formula. The volume of oil discharged is not included as
part of the planning distance calculation for moving navi-
gable waters. Facilities that will meet this substantial
harm criterion are those with facility capacities greater
than or equal to 1 million gallons. It is assumed that these
facilities are capable of having an oil discharge of suffi-
cient quantity to cause injury to fish and wildlife and sen-
sitive environments or shut down a public drinking water
intake. While owners or operators of transfer facilities
that store greater than or equal to 42,000 gallons are not
required to use a planning distance formula for purposes
of the substantial harm criteria, they should use a plan-
ning distance calculation in the development of facility-
specific response plans.
TABLE 3.—SPECIFIED TIME INTERVALS
TABLE 3.—SPECIFIED TIME INTERVALS—
Continued
Operating
areas
Higher volume
port area.
Great Lakes ...
Substantial harm planning time (hrs)
Operating
areas
All other rivers
and canals,
inland, and
nearshore
areas.
Substantial harm planning time (hrs)
24 hour
hours.
arrival+3 hour deployment=27
12 hour arrival+3 hour deployment^ 5
hours.
24 hour arrival+3 hour deployment=27
hours.
2.6 Example of the Planning Distance Calculation for
Oil Transport on Moving Navigable Waters. The follow-
ing example provides a sample calculation using the plan-
ning distance formula for a facility discharging oil into
the Monongahela River:
(1) Solve for v by evaluating n, r, and s for the Chezy-
Manning equation:
Find the roughness coefficient, n, on Table 1 of this at-
tachment for a regular section of a major stream with a
top width greater than 100 feet. The top width of the river
can be found from the topographic map.
n=0.035.
Find slope, s, where A=727 feet, B=710 feet, and C=25
miles.
Solving:
s=[(727 ft • 1710 ft)/25 miles] x [1 mile/5280
feet]=1.3xlO-4
The average mid-channel depth is found by averaging
the mid-channel depth for each mile along the length of
the river between the facility and the public drinking
water intake or the fish or wildlife or sensitive environ-
ment (or 20 miles downstream if applicable). This value
is multiplied by 0.667 to obtain the hydraulic radius. The
mid-channel depth is found by obtaining values for r and
s from the sources shown in Table 2 for the Monongahela
River.
Solving:
r=0.667x20 feet=13.33 feet
Solve for v using:
v=1.5/nXr2/3Xs1/2:
v=[l.5/0.035]x(13.33)2/3x(l.3x10-4)1/2
v=2.73 feet/second
(2) Find t from Table 3 of this attachment. The
Monongahela River's resource response time is 27 hours.
(3) Solve for planning distance, d:
d=v x t x c
d=(2.73 ft/sec)x(27 hours)x(0.68 sec»mile/hr»ft)
d=50 miles
Therefore, 50 miles downstream is the appropriate plan-
ning distance for this facility.
3.0 Oil Transport on Still Water
3.1 For bodies of water including lakes or ponds that
do not have a measurable velocity, the spreading of the
oil over the surface must be considered. Owners or opera-
tors of facilities located next to still water bodies may use
a comparable means of calculating the planning distance.
If a comparable formula is used, documentation of the re-
liability and analytical soundness of the comparable cal-
culation must be attached to the response plan cover
sheet.
3.2 Example of the Planning Distance Calculation for
Oil Transport on Still Water. To assist those facilities
which could potentially discharge into a still body of
21
-------
Pt. 112, App. C
water, the following analysis was performed to provide an
example of the type of formula that may be used to cal-
culate the planning distance. For this example, a worst
case discharge of 2,000,000 gallons is used.
(1) The surface area in square feet covered by an oil
spill on still water, Al, can be determined by the follow-
ing formula,2 where V is the volume of the spill in gal-
lons and C is a constant conversion factor:
Ai=105xV3/4XC
C=0.1643
Ai=105x(2,00°,000 gallons)3/4X(0.1643)
Ai=8.74xl08 ft2
(2) The spreading formula is based on the theoretical
condition that the oil will spread uniformly in all direc-
tions forming a circle. In reality, the outfall of the dis-
charge will direct the oil to the surface of the water where
it intersects the shoreline. Although the oil will not spread
uniformly in all directions, it is assumed that the dis-
charge will spread from the shoreline into a semi-circle
(this assumption does not account for winds or wave ac-
tion).
(3) The area of a circle=tr2
(4) To account for the assumption that oil will spread
in a semi-circular shape, the area of a circle is divided
by 2 and is designated as A2.
A2=(tr2)/2
Solving for the radius, r, using the relationship Ai=A2:
8.74xl08ft2=(T2y2
Therefore, r=23,586 ft
r=23,586 ft+5,280 ft/mile=4.5 miles
Assuming a 20 knot wind under storm conditions:
1 knot=1.15 miles/hour
20 knotsxl.15 miles/hour/knot=23 miles/hr
Assuming that the oil slick moves at 3 percent of the
wind's speed:3
23 miles/hourx0.03=0.69 miles/hour
(5) To estimate the distance that the oil will travel, use
the times required for response resources to arrive at dif-
ferent geographic locations as shown in Table 3 of this
attachment.
For example:
For Higher Volume Port Areas: 15 hrsxO.69 miles/
hr=10.4 miles
For Great Lakes and all other areas: 27 hrsxO.69 miles/
hr=18.6 miles
(6) The total distance that the oil will travel from the
point of discharge, including the distance due to spread-
ing, is calculated as follows:
Higher Volume Port Areas: d=10.4+4.5 miles or approxi-
mately 15 miles
Great Lakes and all other areas: d=18.6+4.5 miles or ap-
proximately 23 miles
4.0 Oil Transport on Tidal-Influence Areas
4.1 The planning distance method for tidal influence
navigable water is based on worst case discharges of per-
sistent and non-persistent oils. Persistent oils are of pri-
2Huang, J.C. and Monastero, F.C., 1982. Review of the
State-of-the-Art of Oil Pollution Models. Final report sub-
mitted to the American Petroleum Institute by Raytheon
Ocean Systems, Co., East Providence, Rhode Island.
3 Oil Spill Prevention & Control. National Spill Control
School, Corpus Christi State University, Thirteenth Edi-
tion, May 1990.
mary concern because they can potentially cause harm
over a greater distance. For persistent oils discharged into
tidal waters, the planning distance is 15 miles from the
facility down current during ebb tide and to the point of
maximum tidal influence or 15 miles, whichever is less,
during flood tide.
4.2 For non-persistent oils discharged into tidal wa-
ters, the planning distance is 5 miles from the facility
down current during ebb tide and to the point of maxi-
mum tidal influence or 5 miles, whichever is less, during
flood tide.
4.3 Example of Determining the Planning Distance
for Two Types of Navigable Water Conditions. Below is
an example of how to determine the proper planning dis-
tance when a facility could impact two types of navigable
water conditions: moving water and tidal water.
(1) Facility X stores persistent oil and is located down-
stream from locks along a slow moving river which is af-
fected by tides. The river velocity, v, is determined to be
0.5 feet/second from the Chezy-Manning equation used to
calculate oil transport on moving navigable waters. The
specified time interval, t, obtained from Table 3 of this
attachment for river areas is 27 hours. Therefore, solving
for the planning distance, d:
d=v x t x c
d=(0.5 ft/sec) x (27 hours) x (0.68 sec»mile/hr»ft)
d=9.18 miles.
(2) However, the planning distance for maximum tidal
influence down current during ebb tide is 15 miles, which
is greater than the calculated 9.18 miles. Therefore, 15
miles downstream is the appropriate planning distance for
this facility.
5.0 Oil Transport Over Land
5.1 Facility owners or operators must evaluate the po-
tential for oil to be transported over land to navigable wa-
ters of the United States. The owner or operator must
evaluate the likelihood that portions of a worst case dis-
charge would reach navigable waters via open channel
flow or from sheet flow across the land, or be prevented
from reaching navigable waters when trapped in natural
or man-made depressions excluding secondary contain-
ment structures.
5.2 As discharged oil travels over land, it may enter
a storm drain or open concrete channel intended for drain-
age. It is assumed that once oil reaches such an inlet, it
will flow into the receiving navigable water. During a
storm event, it is highly probable that the oil will either
flow into the drainage structures or follow the natural
contours of the land and flow into the navigable water.
Expected minimum and maximum velocities are provided
as examples of open concrete channel and pipe flow. The
ranges listed below reflect minimum and maximum ve-
locities used as design criteria.4 The calculation below
demonstrates that the time required for oil to travel
through a storm drain or open concrete channel to navi-
gable water is negligible and can be considered instanta-
neous. The velocities are:
For open concrete channels:
maximum velocity=25 feet per second
minimum velocity=3 feet per second
For storm drains:
4 The design velocities were obtained from Howard
County, Maryland Department of Public Works' Storm
Drainage Design Manual.
22
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Pt. 112, App. D
maximum velocity=25 feet per second
minimum velocity=2 feet per second
5.3 Assuming a length of 0.5 mile from the point of
discharge through an open concrete channel or concrete
storm drain to a navigable water, the travel times (dis-
tance/velocity) are:
1.8 minutes at a velocity of 25 feet per second
14.7 minutes at a velocity of 3 feet per second
22.0 minutes for at a velocity of 2 feet per second
5.4 The distances that shall be considered to deter-
mine the planning distance are illustrated in Figure C-I of
this attachment. The relevant distances can be described
as follows:
Dl=Distance from the nearest opportunity for discharge,
Xi, to a storm drain or an open concrete channel
leading to navigable water.
D2=Distance through the storm drain or open concrete
channel to navigable water.
D3=Distance downstream from the outfall within which
fish and wildlife and sensitive environments could be
injured or a public drinking water intake would be
shut down as determined by the planning distance
formula.
D4=Distance from the nearest opportunity for discharge,
X.2, to fish and wildlife and sensitive environments
not bordering navigable water.
5.5 A facility owner or operator whose nearest oppor-
tunity for discharge is located within 0.5 mile of a navi-
gable water must complete the planning distance calcula-
tion (D3) for the type of navigable water near the facility
or use a comparable formula.
5.6 A facility that is located at a distance greater than
0.5 mile from a navigable water must also calculate a
planning distance (D3) if it is in close proximity (i.e., Dl
is less than 0.5 mile and other factors are conducive to
oil travel over land) to storm drains that flow to navigable
waters. Factors to be considered in assessing oil transport
over land to storm drains shall include the topography of
the surrounding area, drainage patterns, man-made bar-
riers (excluding secondary containment structures), and
soil distribution and porosity. Storm drains or concrete
drainage channels that are located in close proximity to
the facility can provide a direct pathway to navigable wa-
ters, regardless of the length of the drainage pipe. If Dl
is less than or equal to 0.5 mile, a discharge from the fa-
cility could pose substantial harm because the time to
travel the distance from the storm drain to the navigable
water (D2) is virtually instantaneous.
5.7 A facility's proximity to fish and wildlife and
sensitive environments not bordering a navigable water,
as depicted as D4 in Figure C-I of this attachment, must
also be considered, regardless of the distance from the fa-
cility to navigable waters. Factors to be considered in as-
sessing oil transport over land to fish and wildlife and
sensitive environments should include the topography of
the surrounding area, drainage patterns, man-made bar-
riers (excluding secondary containment structures), and
soil distribution and porosity.
5.8 If a facility is not found to pose substantial harm
to fish and wildlife and sensitive environments not bor-
dering navigable waters via oil transport on land, then
supporting documentation should be maintained at the fa-
cility. However, such documentation should be submitted
with the response plan if a facility is found to pose sub-
stantial harm.
EC01MR92.010
[59 FR34102, July 1, 1994]
APPENDIX D TO PART 112—DETERMINATION OF A
WORST CASE DISCHARGE PLANNING VOLUME
1.0 Instructions
1.1 An owner or operator is required to complete this
worksheet if the facility meets the criteria, as presented
in Appendix C to this part, or it is determined by the RA
that the facility could cause substantial harm to the envi-
ronment. The calculation of a worst case discharge plan-
ning volume is used for emergency planning purposes,
and is required in 40 CFR 112.20 for facility owners or
operators who must prepare a response plan. When plan-
ning for the amount of resources and equipment necessary
to respond to the worst case discharge planning volume,
adverse weather conditions must be taken into consider-
ation. An owner or operator is required to determine the
facility's worst case discharge planning volume from ei-
ther Part A of this appendix for an onshore storage facil-
ity, or Part B of this appendix for an onshore production
facility. The worksheet considers the provision of ade-
quate secondary containment at a facility.
1.2 For onshore storage facilities and production fa-
cilities, permanently manifolded oil storage tanks are de-
fined as tanks that are designed, installed, and/or operated
in such a manner that the multiple tanks function as one
storage unit (i.e., multiple tank volumes are equalized). In
a worst case discharge scenario, a single failure could
cause the discharge of the contents of more than one tank.
The owner or operator must provide evidence in the re-
sponse plan that tanks with common piping or piping sys-
tems are not operated as one unit. If such evidence is pro-
vided and is acceptable to the RA, the worst case dis-
charge planning volume would be based on the capacity
of the largest oil storage tank within a common secondary
containment area or the largest oil storage tank within a
single secondary containment area, whichever is greater.
For permanently manifolded tanks that function as one oil
storage unit, the worst case discharge planning volume
would be based on the combined oil storage capacity of
all manifolded tanks or the capacity of the largest single
oil storage tank within a secondary containment area,
whichever is greater. For purposes of this rule, perma-
nently manifolded tanks that are separated by internal di-
visions for each tank are considered to be single tanks
and individual manifolded tank volumes are not com-
bined.
1.3 For production facilities, the presence of explor-
atory wells, production wells, and oil storage tanks must
be considered in the calculation. Part B of this appendix
takes these additional factors into consideration and pro-
vides steps for their inclusion in the total worst case dis-
charge planning volume. Onshore oil production facilities
may include all wells, flowlines, separation equipment,
storage facilities, gathering lines, and auxiliary non-trans-
portation-related equipment and facilities in a single geo-
graphical oil or gas field operated by a single operator.
Although a potential worst case discharge planning vol-
ume is calculated within each section of the worksheet,
the final worst case amount depends on the risk parameter
that results in the greatest volume.
1.4 Marine transportation-related transfer facilities
that contain fixed aboveground onshore structures used
for bulk oil storage are jointly regulated by EPA and the
U.S. Coast Guard (USCG), and are termed "complexes."
23
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Pt. 112, App. D
Because the USCG also requires response plans from
transportation-related facilities to address a worst case
discharge of oil, a separate calculation for the worst case
discharge planning volume for USCG-related facilities is
included in the USCG IFR (see Appendix E to this part,
section 10, for availability). All complexes that are jointly
regulated by EPA and the USCG must compare both cal-
culations for worst case discharge planning volume de-
rived by using the EPA and USCG methodologies and
plan for whichever volume is greater.
PART A: WORST CASE DISCHARGE PLANNING
VOLUME CALCULATION FOR ONSHORE STOR-
AGE FACILITIES i
Part A of this worksheet is to be completed by the
owner or operator of an SPCC-regulated facility (exclud-
ing oil production facilities) if the facility meets the cri-
teria as presented in Appendix C to this part, or if it is
determined by the RA that the facility could cause sub-
stantial harm to the environment. If you are the owner or
operator of a production facility, please proceed to Part
B of this worksheet.
A. 1 SINGLE-TANK FACILITIES
For facilities containing only one aboveground oil stor-
age tank, the worst case discharge planning volume
equals the capacity of the oil storage tank. If adequate
secondary containment (sufficiently large to contain the
capacity of the aboveground oil storage tank plus suffi-
cient freeboard to allow for precipitation) exists for the oil
storage tank, multiply the capacity of the tank by 0.8.
(1) FINAL WORST CASE VOLUME: GAL
(2) Do not proceed further.
A.2 SECONDARY CONTAINMENT—MULTIPLE-TANK
FACILITIES
Are all aboveground oil storage tanks or groups of
aboveground oil storage tanks at the facility without ade-
quate secondary containment? 2
(Y/N)
A. 2.1 If the answer is yes, the final worst case dis-
charge planning volume equals the total aboveground oil
storage capacity at the facility.
(1) FINAL WORST CASE VOLUME: GAL
(2) Do not proceed further.
A.2.2 If the answer is no, calculate the total above-
ground oil storage capacity of tanks without adequate sec-
ondary containment. If all aboveground oil storage tanks
or groups of aboveground oil storage tanks at the facility
have adequate secondary containment, ENTER "0"
(zero).
GAL
A. 2.3 Calculate the capacity of the largest single
aboveground oil storage tank within an adequate second-
ary containment area or the combined capacity of a group
of aboveground oil storage tanks permanently manifolded
together, whichever is greater, PLUS THE VOLUME
FROM QUESTION A.2.2.
FINAL WORST CASE VOLUME:3
GAL
111 Storage facilities" represent all facilities subject to
this part, excluding oil production facilities.
2 Secondary containment is defined in 40 CFR
112.7(e)(2). Acceptable methods and structures for con-
tainment are also given in 40 CFR 112.7(c)(l).
PART B: WORST CASE DISCHARGE PLANNING
VOLUME CALCULATION FOR ONSHORE PRO-
DUCTION FACILITIES
Part B of this worksheet is to be completed by the
owner or operator of an SPCC-regulated oil production
facility if the facility meets the criteria presented in Ap-
pendix C to this part, or if it is determined by the RA
that the facility could cause substantial harm. A produc-
tion facility consists of all wells (producing and explor-
atory) and related equipment in a single geographical oil
or gas field operated by a single operator.
B. I SINGLE-TANK FACILITIES
B.I.I For facilities containing only one aboveground
oil storage tank, the worst case discharge planning vol-
ume equals the capacity of the aboveground oil storage
tank plus the production volume of the well with the
highest output at the facility. If adequate secondary con-
tainment (sufficiently large to contain the capacity of the
aboveground oil storage tank plus sufficient freeboard to
allow for precipitation) exists for the storage tank, mul-
tiply the capacity of the tank by 0.8.
B.I.2 For facilities with production wells producing
by pumping, if the rate of the well with the highest output
is known and the number of days the facility is unat-
tended can be predicted, then the production volume is
equal to the pumping rate of the well multiplied by the
greatest number of days the facility is unattended.
B.I.3 If the pumping rate of the well with the highest
output is estimated or the maximum number of days the
facility is unattended is estimated, then the production
volume is determined from the pumping rate of the well
multiplied by 1.5 times the greatest number of days that
the facility has been or is expected to be unattended.
B. 1.4 Attachment D-l to this appendix provides
methods for calculating the production volume for explor-
atory wells and production wells producing under pres-
sure.
(1) FINAL WORST CASE VOLUME: GAL
(2) Do not proceed further.
B.2
SECONDARY CONTAINMENT-
FACILITIES
MULTIPLE-TANK
Are all aboveground oil storage tanks or groups of
aboveground oil storage tanks at the facility without ade-
quate secondary containment?
(Y/N)
B.2.1 If the answer is yes, the final worst case vol-
ume equals the total aboveground oil storage capacity
without adequate secondary containment plus the produc-
tion volume of the well with the highest output at the fa-
cility.
(1) For facilities with production wells producing by
pumping, if the rate of the well with the highest output
is known and the number of days the facility is unat-
tended can be predicted, then the production volume is
equal to the pumping rate of the well multiplied by the
greatest number of days the facility is unattended.
3 All complexes that are jointly regulated by EPA and
the USCG must also calculate the worst case discharge
planning volume for the transportation-related portions of
the facility and plan for whichever volume is greater.
24
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Pt. 112, App. D
(2) If the pumping rate of the well with the highest out-
put is estimated or the maximum number of days the fa-
cility is unattended is estimated, then the production vol-
ume is determined from the pumping rate of the well
multiplied by 1.5 times the greatest number of days that
the facility has been or is expected to be unattended.
(3) Attachment D-l to this appendix provides methods
for calculating the production volumes for exploratory
wells and production wells producing under pressure.
(A) FINAL WORST CASE VOLUME: GAL
(B) Do not proceed further.
B.2.2 If the answer is no, calculate the total above-
ground oil storage capacity of tanks without adequate sec-
ondary containment. If all aboveground oil storage tanks
or groups of aboveground oil storage tanks at the facility
have adequate secondary containment, ENTER "0"
(zero).
GAL
B.2.3 Calculate the capacity of the largest single
aboveground oil storage tank within an adequate second-
ary containment area or the combined capacity of a group
of aboveground oil storage tanks permanently manifolded
together, whichever is greater, plus the production volume
of the well with the highest output, PLUS THE VOL-
UME FROM QUESTION B.2.2. Attachment D-l pro-
vides methods for calculating the production volumes for
exploratory wells and production wells producing under
pressure.
(1) FINAL WORST CASE VOLUME:4
GAL
(2) Do not proceed further.
ATTACHMENTS TO APPENDIX D
ATTACHMENT D-I—METHODS TO CALCULATE PRODUC-
TION VOLUMES FOR PRODUCTION FACILITIES WITH EX-
PLORATORY WELLS OR PRODUCTION WELLS PRODUC-
ING UNDER PRESSURE
1.0 Introduction
The owner or operator of a production facility with ex-
ploratory wells or production wells producing under pres-
sure shall compare the well rate of the highest output well
(rate of well), in barrels per day, to the ability of response
equipment and personnel to recover the volume of oil that
could be discharged (rate of recovery), in barrels per day.
The result of this comparison will determine the method
used to calculate the production volume for the produc-
tion facility. This production volume is to be used to cal-
culate the worst case discharge planning volume in Part
B of this appendix.
2.0 Description of Methods
2.1 Method A
If the well rate would overwhelm the response efforts
(i.e., rate of well/rate of recovery > 1), then the produc-
tion volume would be the 30-day forecasted well rate for
a well 10,000 feet deep or less, or the 45-day forecasted
well rate for a well deeper than 10,000 feet.
(1) For wells 10,000 feet deep or less:
Production volume=30 days X rate of well.
4 All complexes that are jointly regulated by EPA and
the USCG must also calculate the worst case discharge
planning volume for the transportation-related portions of
the facility and plan for whichever volume is greater.
(2) For wells deeper than 10,000 feet:
Production volume=45 days X rate of well.
2.2 Method B
2.2.1 If the rate of recovery would be greater than the
well rate (i.e., rate of well/rate of recovery <1), then the
production volume would equal the sum of two terms:
Production volume=discharge volumei + discharge vol-
ume2
2.2.2 The first term represents the volume of the oil
discharged from the well between the time of the blowout
and the time the response resources are on scene and re-
covering oil (discharge volumei).
Discharge volumei=(days unattended+days to respond) X
(rate of well)
2.2.3 The second term represents the volume of oil
discharged from the well after the response resources
begin operating until the spill is stopped, adjusted for the
recovery rate of the response resources (discharge vol-
ume2).
(1) For wells 10,000 feet deep or less:
Discharge volume2=[30 days • (days unattended + days to
respond)] X (rate of well) X (rate of well/rate of re-
covery)
(2) For wells deeper than 10,000 feet:
Discharge volume2=[45 days • (days unattended + days to
respond)] X (rate of well) X (rate of well/rate of re-
covery)
3.0 Example
3.1 A facility consists of two production wells pro-
ducing under pressure, which are both less than 10,000
feet deep. The well rate of well A is 5 barrels per day,
and the well rate of well B is 10 barrels per day. The fa-
cility is unattended for a maximum of 7 days. The facility
operator estimates that it will take 2 days to have re-
sponse equipment and personnel on scene and responding
to a blowout, and that the projected rate of recovery will
be 20 barrels per day.
(1) First, the facility operator determines that the high-
est output well is well B. The facility operator calculates
the ratio of the rate of well to the rate of recovery:
10 barrels per day/20 barrels per day=0.5 Because the
ratio is less than one, the facility operator will use
Method B to calculate the production volume.
(2) The first term of the equation is:
Discharge volumei=(7 days + 2 days) X (10 barrels per
day)=90 barrels
(3) The second term of the equation is:
Discharge volume2=[30 days—(7 days + 2 days)] X (10
barrels per day) X (0.5)=105 barrels
(4) Therefore, the production volume is:
Production volume=90 barrels +105 barrels=195 barrels
3.2 If the recovery rate was 5 barrels per day, the
ratio of rate of well to rate of recovery would be 2, so
the facility operator would use Method A. The production
volume would have been:
30 days X 10 barrels per day=300 barrels
[59 FR 34110, July 1, 1994; 59 FR 49006, Sept. 26,
1994]
25
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Pt. 112, App. E
APPENDIX E TO PART 112—DETERMINATION AND
EVALUATION OF REQUIRED RESPONSE RE-
SOURCES FOR FACILITY RESPONSE PLANS
1.0 Purpose and Definitions
1.1 The purpose of this appendix is to describe the
procedures to identify response resources to meet the re-
quirements of § 112.20. To identify response resources to
meet the facility response plan requirements of 40 CFR
112.20(h), owners or operators shall follow this appendix
or, where not appropriate, shall clearly demonstrate in the
response plan why use of this appendix is not appropriate
at the facility and make comparable arrangements for re-
sponse resources.
1.2 Definitions.
1.2.1 Nearshore is an operating area defined as ex-
tending seaward 12 miles from the boundary lines defined
in 46 CFR part 7, except in the Gulf of Mexico. In the
Gulf of Mexico, it means the area extending 12 miles
from the line of demarcation (COLREG lines) defined in
49 CFR 80.740 and 80.850.
1.2.2 Non-persistent oils or Group 1 oils include:
(1) A petroleum-based oil that, at the time of shipment,
consists of hydrocarbon fractions:
(A) At least 50 percent of which by volume, distill at
a temperature of 340 degrees C (645 degrees F); and
(B) At least 95 percent of which by volume, distill at
a temperature of 370 degrees C (700 degrees F); and
(2) A non-petroleum oil with a specific gravity less
than 0.8.
1.2.3 Non-petroleum oil is oil of any kind that is not
petroleum-based. It includes, but is not limited to, animal
and vegetable oils.
1.2.4 Ocean means the nearshore area.
1.2.5 Operating area means Rivers and Canals, In-
land, Nearshore, and Great Lakes geographic location(s)
in which a facility is handling, storing, or transporting oil.
1.2.6 Operating environment means Rivers and Ca-
nals, Inland, Great Lakes, or Ocean. These terms are used
to define the conditions in which response equipment is
designed to function.
1.2.7 Persistent oils include:
(1) A petroleum-based oil that does not meet the dis-
tillation criteria for a non-persistent oil. Persistent oils are
further classified based on specific gravity as follows:
(A) Group 2—specific gravity less than 0.85;
(B) Group 3—specific gravity equal to or greater than
0.85 and less than 0.95;
(C) Group 4—specific gravity equal to or greater than
0.95 and less than 1.0; or
(D) Group 5—specific gravity equal to or greater than
1.0.
(2) A non-petroleum oil with a specific gravity of 0.8
or greater. These oils are further classified based on spe-
cific gravity as follows:
(A) Group 2—specific gravity equal to or greater than
0.8 and less than 0.85;
(B) Group 3—specific gravity equal to or greater than
0.85 and less than 0.95;
(C) Group 4—specific gravity equal to or greater than
0.95 and less than 1.0; or
(D) Group 5—specific gravity equal to or greater than
1.0.
1.2.8 Other definitions are included in §112.2 and
section 1.1 of Appendix C.
2.0 Equipment Operability and Readiness
2.1 All equipment identified in a response plan must
be designed to operate in the conditions expected in the
facility's geographic area (i.e., operating environment).
These conditions vary widely based on location and sea-
son. Therefore, it is difficult to identify a single stockpile
of response equipment that will function effectively in
each geographic location (i.e., operating area).
2.2 Facilities handling, storing, or transporting oil in
more than one operating environment as indicated in
Table 1 of this appendix must identify equipment capable
of successfully functioning in each operating environment.
2.3 When identifying equipment for the response plan
(based on the use of this appendix), a facility owner or
operator must consider the inherent limitations of the
operability of equipment components and response sys-
tems. The criteria in Table 1 of this appendix shall be
used to evaluate the operability in a given environment.
These criteria reflect the general conditions in certain op-
erating environments.
2.3.1 The Regional Administrator may require docu-
mentation that the boom identified in a facility response
plan meets the criteria in Table 1 of this appendix. Absent
acceptable documentation, the Regional Administrator
may require that the boom be tested to demonstrate that
it meets the criteria in Table 1 of this appendix. Testing
must be in accordance with ASTM F 715, ASTM F 989,
or other tests approved by EPA as deemed appropriate
(see Appendix E to this part, section 10, for general avail-
ability of documents).
2.4 Table 1 of this appendix lists criteria for oil re-
covery devices and boom. All other equipment necessary
to sustain or support response operations in an operating
environment must be designed to function in the same
conditions. For example, boats that deploy or support
skimmers or boom must be capable of being safely oper-
ated in the significant wave heights listed for the applica-
ble operating environment.
2.5 A facility owner or operator shall refer to the ap-
plicable Area Contingency Plan (ACP), where available,
to determine if ice, debris, and weather-related visibility
are significant factors to evaluate the operability of equip-
ment. The ACP may also identify the average temperature
ranges expected in the facility's operating area. All equip-
ment identified in a response plan must be designed to
operate within those conditions or ranges.
2.6 This appendix provides information on response
resource mobilization and response times. The distance of
the facility from the storage location of the response re-
sources must be used to determine whether the resources
can arrive on-scene within the stated time. A facility
owner or operator shall include the time for notification,
mobilization, and travel of resources identified to meet
the medium and Tier 1 worst case discharge requirements
identified in section 4.3 of this appendix (for medium dis-
charges) and section 5.3 of this appendix (for worst case
discharges). The facility owner or operator must plan for
notification and mobilization of Tier 2 and 3 response re-
sources as necessary to meet the requirements for arrival
on-scene in accordance with section 5.3 of this appendix.
An on-water speed of 5 knots and a land speed of 35
miles per hour is assumed, unless the facility owner or
operator can demonstrate otherwise.
2.7 In identifying equipment, the facility owner or op-
erator shall list the storage location, quantity, and manu-
facturer's make and model. For oil recovery devices, the
26
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Pt. 112, App. E
effective daily recovery capacity, as determined using sec-
tion 6 of this appendix, must be included. For boom, the
overall boom height (draft and freeboard) shall be in-
cluded. A facility owner or operator is responsible for en-
suring that the identified boom has compatible connectors.
3.0 Determining Response Resources Required for Small
Discharges
3.1 A facility owner or operator shall identify suffi-
cient response resources available, by contract or other
approved means as described in §112.2, to respond to a
small discharge. A small discharge is defined as any dis-
charge volume less than or equal to 2,100 gallons, but not
to exceed the calculated worst case discharge. The equip-
ment must be designed to function in the operating envi-
ronment at the point of expected use.
3.2 Complexes that are regulated by EPA and the
USCG must also consider planning quantities for the
transportation-related transfer portion of the facility. The
USCG planning level that corresponds to EPA's "small
discharge" is termed "the average most probable dis-
charge." The USCG revisions to 33 CFR part 154 define
"the average most probable discharge" as a discharge of
50 barrels (2,100 gallons). Owners or operators of com-
plexes must compare oil spill volumes for a small dis-
charge and an average most probable discharge and plan
for whichever quantity is greater.
3.3 The response resources shall, as appropriate, in-
clude:
3.3.1 One thousand feet of containment boom (or, for
complexes with marine transfer components, 1,000 feet of
containment boom or two times the length of the largest
vessel that regularly conducts oil transfers to or from the
facility, whichever is greater), and a means of deploying
it within 1 hour of the discovery of a spill;
3.3.2 Oil recovery devices with an effective daily re-
covery capacity equal to the amount of oil discharged in
a small discharge or greater which is available at the fa-
cility within 2 hours of the detection of an oil discharge;
and
3.3.3 Oil storage capacity for recovered oily material
indicated in section 9.2 of this appendix.
4.0 Determining Response Resources Required for
Medium Discharges
4.1 A facility owner or operator shall identify suffi-
cient response resources available, by contract or other
approved means as described in §112.2, to respond to a
medium discharge of oil for that facility. This will require
response resources capable of containing and collecting
up to 36,000 gallons of oil or 10 percent of the worst
case discharge, whichever is less. All equipment identi-
fied must be designed to operate in the applicable operat-
ing environment specified in Table 1 of this appendix.
4.2 Complexes that are regulated by EPA and the
USCG must also consider planning quantities for the
transportation-related transfer portion of the facility. The
USCG planning level that corresponds to EPA's "me-
dium discharge" is termed "the maximum most probable
discharge." The USCG revisions to 33 CFR part 154 de-
fine "the maximum most probable discharge" as a dis-
charge of 1,200 barrels (50,400 gallons) or 10 percent of
the worst case discharge, whichever is less. Owners or
operators of complexes must compare spill volumes for a
medium discharge and a maximum most probable dis-
charge and plan for whichever quantity is greater.
4.3 Oil recovery devices identified to meet the appli-
cable medium discharge volume planning criteria must be
located such that they are capable of arriving on-scene
within 6 hours in higher volume port areas and the Great
Lakes and within 12 hours in all other areas. Higher vol-
ume port areas and Great Lakes areas are defined in sec-
tion 1.1 of Appendix C to this part.
4.4 Because rapid control, containment, and removal
of oil are critical to reduce spill impact, the owner or op-
erator must determine response resources using an effec-
tive daily recovery capacity for oil recovery devices equal
to 50 percent of the planning volume applicable for the
facility as determined in section 4.1 of this appendix. The
effective daily recovery capacity for oil recovery devices
identified in the plan must be determined using the cri-
teria in section 6 of this appendix.
4.5 In addition to oil recovery capacity, the plan shall,
as appropriate, identify sufficient quantity of containment
boom available, by contract or other approved means as
described in §112.2, to arrive within the required re-
sponse times for oil collection and containment and for
protection of fish and wildlife and sensitive environments.
For further description of fish and wildlife and sensitive
environments, see Appendices I, II, and III to DOC/
NOAA's "Guidance for Facility and Vessel Response
Plans: Fish and Wildlife and Sensitive Environments"
(see Appendix E to this part, section 10, for availability)
and the applicable ACP. While the regulation does not set
required quantities of boom for oil collection and contain-
ment, the response plan shall identify and ensure, by con-
tract or other approved means as described in § 112.2, the
availability of the quantity of boom identified in the plan
for this purpose.
4.6 The plan must indicate the availability of tem-
porary storage capacity to meet section 9.2 of this appen-
dix. If available storage capacity is insufficient to meet
this level, then the effective daily recovery capacity must
be derated (downgraded) to the limits of the available
storage capacity.
4.7 The following is an example of a medium dis-
charge volume planning calculation for equipment identi-
fication in a higher volume port area: The facility's larg-
est aboveground storage tank volume is 840,000 gallons.
Ten percent of this capacity is 84,000 gallons. Because 10
percent of the facility's largest tank, or 84,000 gallons, is
greater than 36,000 gallons, 36,000 gallons is used as the
planning volume. The effective daily recovery capacity is
50 percent of the planning volume, or 18,000 gallons per
day. The ability of oil recovery devices to meet this ca-
pacity must be calculated using the procedures in section
6 of this appendix. Temporary storage capacity available
on-scene must equal twice the daily recovery capacity as
indicated in section 9.2 of this appendix, or 36,000 gal-
lons per day. This is the information the facility owner
or operator must use to identify and ensure the availabil-
ity of the required response resources, by contract or
other approved means as described in § 112.2. The facility
owner shall also identify how much boom is available for
use.
5.0 Determining Response Resources Required for the
Worst Case Discharge to the Maximum Extent Prac-
ticable
5.1 A facility owner or operator shall identify and en-
sure the availability of, by contract or other approved
means as described in §112.2, sufficient response re-
sources to respond to the worst case discharge of oil to
27
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Pt. 112, App. E
the maximum extent practicable. Section 7 of this appen-
dix describes the method to determine the necessary re-
sponse resources. A worksheet is provided as Attachment
E-l at the end of this appendix to simplify the procedures
involved in calculating the planning volume for response
resources for the worst case discharge.
5.2 Complexes that are regulated by EPA and the
USCG must also consider planning for the worst case dis-
charge at the transportation-related portion of the facility.
The USCG requires that transportation-related facility
owners or operators use a different calculation for the
worst case discharge in the revisions to 33 CFR part 154.
Owners or operators of complex facilities that are regu-
lated by EPA and the USCG must compare both calcula-
tions of worst case discharge derived by EPA and the
USCG and plan for whichever volume is greater.
5.3 Oil spill response resources identified in the re-
sponse plan and available, by contract or other approved
means as described in §112.2, to meet the applicable
worst case discharge planning volume must be located
such that they are capable of arriving at the scene of a
discharge within the times specified for the applicable re-
sponse tier listed below:
Higher volume
port areas.
Great Lakes
All other river
and canal,
inland, and
nearshore
areas.
Tier 1
6 hrs
12 hrs
12 hrs
Tier 2
30 hrs
36 hrs
36 hrs
TierS
54 hrs
60 hrs
60 hrs
The three levels of response tiers apply to the amount of
time in which facility owners or operators must plan for
response resources to arrive at the scene of a spill to re-
spond to the worst case discharge planning volume. For
example, at a worst case discharge in an inland area, the
first tier of response resources (i.e., that amount of on-
water and shoreline cleanup capacity necessary to respond
to the fraction of the worst case discharge as indicated
through the series of steps described in sections 7.2 and
7.3 of this appendix) would arrive at the scene of the dis-
charge within 12 hours; the second tier of response re-
sources would arrive within 36 hours; and the third tier
of response resources would arrive within 60 hours.
5.4 The effective daily recovery capacity for oil re-
covery devices identified in the response plan must be de-
termined using the criteria in section 6 of this appendix.
A facility owner or operator shall identify the storage lo-
cations of all response resources used for each tier. The
owner or operator of a facility whose required daily re-
covery capacity exceeds the applicable contracting caps in
Table 5 of this appendix shall, as appropriate, identify
sources of additional equipment, their location, and the
arrangements made to obtain this equipment during a re-
sponse. The owner or operator of a facility whose cal-
culated planning volume exceeds the applicable contract-
ing caps in Table 5 of this appendix shall, as appropriate,
identify sources of additional equipment equal to twice
the cap listed in Tier 3 or the amount necessary to reach
the calculated planning volume, whichever is lower. The
resources identified above the cap shall be capable of ar-
riving on-scene not later than the Tier 3 response times
in section 5.3 of this appendix. No contract is required.
While general listings of available response equipment
may be used to identify additional sources (i.e., "public"
resources vs. "private" resources), the response plan
shall identify the specific sources, locations, and quan-
tities of equipment that a facility owner or operator has
considered in his or her planning. When listing USCG-
classified oil spill removal organization(s) that have suffi-
cient removal capacity to recover the volume above the
response capacity cap for the specific facility, as specified
in Table 5 of this appendix, it is not necessary to list spe-
cific quantities of equipment.
5.5 A facility owner or operator shall identify the
availability of temporary storage capacity to meet section
9.2 of this appendix. If available storage capacity is insuf-
ficient, then the effective daily recovery capacity must be
derated (downgraded) to the limits of the available storage
capacity.
5.6 When selecting response resources necessary to
meet the response plan requirements, the facility owner or
operator shall, as appropriate, ensure that a portion of
those resources is capable of being used in close-to-shore
response activities in shallow water. For any EPA-regu-
lated facility that is required to plan for response in shal-
low water, at least 20 percent of the on-water response
equipment identified for the applicable operating area
shall, as appropriate, be capable of operating in water of
6 feet or less depth.
5.7 In addition to oil spill recovery devices, a facility
owner or operator shall identify sufficient quantities of
boom that are available, by contract or other approved
means as described in §112.2, to arrive on-scene within
the specified response times for oil containment and col-
lection. The specific quantity of boom required for collec-
tion and containment will depend on the facility-specific
information and response strategies employed. A facility
owner or operator shall, as appropriate, also identify suffi-
cient quantities of oil containment boom to protect fish
and wildlife and sensitive environments. For further de-
scription of fish and wildlife and sensitive environments,
see Appendices I, II, and III to DOC/NOAA's "Guidance
for Facility and Vessel Response Plans: Fish and Wildlife
and Sensitive Environments" (see Appendix E to this
part, section 10, for availability), and the applicable ACP.
Refer to this guidance document for the number of days
and geographic areas (i.e., operating environments) speci-
fied in Table 2 of this appendix.
5.8 A facility owner or operator shall also identify, by
contract or other approved means as described in § 112.2,
the availability of an oil spill removal organization(s) (as
described in § 112.2) capable of responding to a shoreline
cleanup operation involving the calculated volume of oil
and emulsified oil that might impact the affected shore-
line. The volume of oil that shall, as appropriate, be
planned for is calculated through the application of factors
contained in Tables 2 and 3 of this appendix. The volume
calculated from these tables is intended to assist the facil-
ity owner or operator to identify an oil spill removal orga-
nization with sufficient resources and expertise.
6.0 Determining Effective Daily Recovery Capacity for
Oil Recovery Devices
6.1 Oil recovery devices identified by a facility owner
or operator must be identified by the manufacturer,
model, and effective daily recovery capacity. These ca-
pacities must be used to determine whether there is suffi-
cient capacity to meet the applicable planning criteria for
a small discharge, a medium discharge, and a worst case
discharge to the maximum extent practicable.
28
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Pt. 112, App. E
6.2 To determine the effective daily recovery capacity
of oil recovery devices, the formula listed in section 6.2.1
of this appendix shall be used. This formula considers po-
tential limitations due to available daylight, weather, sea
state, and percentage of emulsified oil in the recovered
material. The RA may assign a lower efficiency factor to
equipment listed in a response plan if it is determined that
such a reduction is warranted.
6.2.1 The following formula shall be used to calculate
the effective daily recovery capacity:
R = T X 24 hours X E
where:
R—Effective daily recovery capacity;
T—Throughput rate in barrels per hour (nameplate capac-
ity); and
E—20 percent efficiency factor (or lower factor as deter-
mined by the Regional Administrator).
6.2.2 For those devices in which the pump limits the
throughput of liquid, throughput rate shall be calculated
using the pump capacity.
6.2.3 For belt or moptype devices, the throughput rate
shall be calculated using the speed of the belt or mop
through the device, assumed thickness of oil adhering to
or collected by the device, and surface area of the belt
or mop. For purposes of this calculation, the assumed
thickness of oil will be 1A inch.
6.2.4 Facility owners or operators that include oil re-
covery devices whose throughput is not measurable using
a pump capacity or belt/mop speed may provide informa-
tion to support an alternative method of calculation. This
information must be submitted following the procedures
in section 6.3.2 of this appendix.
6.3 As an alternative to section 6.2 of this appendix,
a facility owner or operator may submit adequate evi-
dence that a different effective daily recovery capacity
should be applied for a specific oil recovery device. Ade-
quate evidence is actual verified performance data in spill
conditions or tests using American Society of Testing and
Materials (ASTM) Standard F 631-80, F 808-83 (1988),
or an equivalent test approved by EPA as deemed appro-
priate (see Appendix E to this part, section 10, for general
availability of documents).
6.3.1 The following formula must be used to calculate
the effective daily recovery capacity under this alter-
native:
R = D XU
where:
R—Effective daily recovery capacity;
D—Average Oil Recovery Rate in barrels per hour (Item
26 in F 808-83; Item 13.1.15 in F 631-80; or actual
performance data); and
U—Hours per day that equipment can operate under spill
conditions. Ten hours per day must be used unless
a facility owner or operator can demonstrate that the
recovery operation can be sustained for longer peri-
ods.
6.3.2 A facility owner or operator submitting a re-
sponse plan shall provide data that supports the effective
daily recovery capacities for the oil recovery devices list-
ed. The following is an example of these calculations:
(1) A weir skimmer identified in a response plan has
a manufacturer's rated throughput at the pump of 267 gal-
lons per minute (gpm).
267 gpm=381 barrels per hour (bph)
R=381 bphx24 hr/dayx0.2=l,829 barrels per day
(2) After testing using ASTM procedures, the skim-
mer's oil recovery rate is determined to be 220 gpm. The
facility owner or operator identifies sufficient resources
available to support operations for 12 hours per day.
220 gpm=314bph
R=314 bphxl2 hr/day=3,768 barrels per day
(3) The facility owner or operator will be able to use
the higher capacity if sufficient temporary oil storage ca-
pacity is available. Determination of alternative efficiency
factors under section 6.2 of this appendix or the accept-
ability of an alternative effective daily recovery capacity
under section 6.3 of this appendix will be made by the
Regional Administrator as deemed appropriate.
7.0 Calculating Planning Volumes for a Worst Case
Discharge
7.1 A facility owner or operator shall plan for a re-
sponse to the facility's worst case discharge. The planning
for on-water oil recovery must take into account a loss of
some oil to the environment due to evaporative and natu-
ral dissipation, potential increases in volume due to emul-
sification, and the potential for deposition of oil on the
shoreline. The procedures for non-petroleum oils are dis-
cussed in section 7.7 of this appendix.
7.2 The following procedures must be used by a facil-
ity owner or operator in determining the required on-
water oil recovery capacity:
7.2.1 The following must be determined: the worst
case discharge volume of oil in the facility; the appro-
priate group(s) for the types of oil handled, stored, or
transported at the facility [persistent (Groups 2, 3, 4, 5)
or non-persistent (Group 1)]; and the facility's specific
operating area. See sections 1.2.2 and 1.2.7 of this appen-
dix for the definitions of non-persistent and persistent
oils, respectively. Facilities that handle, store, or transport
oil from different oil groups must calculate each group
separately, unless the oil group constitutes 10 percent or
less by volume of the facility's total oil storage capacity.
This information is to be used with Table 2 of this appen-
dix to determine the percentages of the total volume to
be used for removal capacity planning. Table 2 of this ap-
pendix divides the volume into three categories: oil lost
to the environment; oil deposited on the shoreline; and oil
available for on-water recovery.
7.2.2 The on-water oil recovery volume shall, as ap-
propriate, be adjusted using the appropriate emulsification
factor found in Table 3 of this appendix. Facilities that
handle, store, or transport oil from different petroleum
groups must compare the on-water recovery volume for
each oil group (unless the oil group constitutes 10 percent
or less by volume of the facility's total storage capacity)
and use the calculation that results in the largest on-water
oil recovery volume to plan for the amount of response
resources for a worst case discharge.
7.2.3 The adjusted volume is multiplied by the on-
water oil recovery resource mobilization factor found in
Table 4 of this appendix from the appropriate operating
area and response tier to determine the total on-water oil
recovery capacity in barrels per day that must be identi-
fied or contracted to arrive on-scene within the applicable
time for each response tier. Three tiers are specified. For
higher volume port areas, the contracted tiers of resources
must be located such that they are capable of arriving on-
scene within 6 hours for Tier 1, 30 hours for Tier 2, and
54 hours for Tier 3 of the discovery of an oil discharge.
29
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Pt. 112, App. E
For all other rivers and canals, inland, nearshore areas,
and the Great Lakes, these tiers are 12, 36, and 60 hours.
7.2.4 The resulting on-water oil recovery capacity in
barrels per day for each tier is used to identify response
resources necessary to sustain operations in the applicable
operating area. The equipment shall be capable of sustain-
ing operations for the time period specified in Table 2 of
this appendix. The facility owner or operator shall iden-
tify and ensure the availability, by contract or other ap-
proved means as described in §112.2, of sufficient oil
spill recovery devices to provide the effective daily oil re-
covery capacity required. If the required capacity exceeds
the applicable cap specified in Table 5 of this appendix,
then a facility owner or operator shall ensure, by contract
or other approved means as described in § 112.2, only for
the quantity of resources required to meet the cap, but
shall identify sources of additional resources as indicated
in section 5.4 of this appendix. The owner or operator of
a facility whose planning volume exceeded the cap in
1993 must make arrangements to identify and ensure the
availability, by contract or other approved means as de-
scribed in §112.2, for additional capacity to be under
contract by 1998 or 2003, as appropriate. For a facility
that handles multiple groups of oil, the required effective
daily recovery capacity for each oil group is calculated
before applying the cap. The oil group calculation result-
ing in the largest on-water recovery volume must be used
to plan for the amount of response resources for a worst
case discharge, unless the oil group comprises 10 percent
or less by volume of the facility's total oil storage capac-
ity.
7.3 The procedures discussed in sections 7.3.1-7.3.3
of this appendix must be used to calculate the planning
volume for identifying shoreline cleanup capacity (for
Group 1 through Group 4 oils).
7.3.1 The following must be determined: the worst
case discharge volume of oil for the facility; the appro-
priate group(s) for the types of oil handled, stored, or
transported at the facility [persistent (Groups 2, 3, or 4)
or non-persistent (Group 1)]; and the geographic area(s)
in which the facility operates (i.e., operating areas). For
a facility handling, storing, or transporting oil from dif-
ferent groups, each group must be calculated separately.
Using this information, Table 2 of this appendix must be
used to determine the percentages of the total volume to
be used for shoreline cleanup resource planning.
7.3.2 The shoreline cleanup planning volume must be
adjusted to reflect an emulsification factor using the same
procedure as described in section 7.2.2 of this appendix.
7.3.3 The resulting volume shall be used to identify
an oil spill removal organization with the appropriate
shoreline cleanup capability.
7.4 A response plan must identify response resources
with fire fighting capability. The owner or operator of a
facility that handles, stores, or transports Group 1 through
Group 4 oils that does not have adequate fire fighting re-
sources located at the facility or that cannot rely on suffi-
cient local fire fighting resources must identify adequate
fire fighting resources. It is recommended that the facility
owner or operator ensure, by contract or other approved
means as described in § 112.2, the availability of these re-
sources. The response plan must also identify an individ-
ual located at the facility to work with the fire department
for Group 1 through Group 4 oil fires. This individual
shall also verify that sufficient well-trained fire fighting
resources are available within a reasonable response time
to a worst case scenario. The individual may be the quali-
fied individual identified in the response plan or another
appropriate individual located at the facility.
7.5 The following is an example of the procedure de-
scribed above in sections 7.2 and 7.3 of this appendix: A
facility with a 270,000 barrel (11.3 million gallons) ca-
pacity for #6 oil (specific gravity 0.96) is located in a
higher volume port area. The facility is on a peninsula
and has docks on both the ocean and bay sides. The facil-
ity has four aboveground oil storage tanks with a com-
bined total capacity of 80,000 barrels (3.36 million gal-
lons) and no secondary containment. The remaining facil-
ity tanks are inside secondary containment structures. The
largest aboveground oil storage tank (90,000 barrels or
3.78 million gallons) has its own secondary containment.
Two 50,000 barrel (2.1 million gallon) tanks (that are not
connected by a manifold) are within a common secondary
containment tank area, which is capable of holding
100,000 barrels (4.2 million gallons) plus sufficient
freeboard.
7.5.1 The worst case discharge for the facility is cal-
culated by adding the capacity of all aboveground oil
storage tanks without secondary containment (80,000 bar-
rels) plus the capacity of the largest aboveground oil stor-
age tank inside secondary containment. The resulting
worst case discharge volume is 170,000 barrels or 7.14
million gallons.
7.5.2 Because the requirements for Tiers 1, 2, and 3
for inland and nearshore exceed the caps identified in
Table 5 of this appendix, the facility owner will contract
for a response to 10,000 barrels per day (bpd) for Tier
1, 20,000 bpd for Tier 2, and 40,000 bpd for Tier 3. Re-
sources for the remaining 7,850 bpd for Tier 1, 9,750 bpd
for Tier 2, and 7,600 bpd for Tier 3 shall be identified
but need not be contracted for in advance. The facility
owner or operator shall, as appropriate, also identify or
contract for quantities of boom identified in their response
plan for the protection of fish and wildlife and sensitive
environments within the area potentially impacted by a
worst case discharge from the facility. For further descrip-
tion of fish and wildlife and sensitive environments, see
Appendices I, II, and III to DOC/NOAA's "Guidance for
Facility and Vessel Response Plans: Fish and Wildlife
and Sensitive Environments," (see Appendix E to this
part, section 10, for availability) and the applicable ACP.
Attachment C-III to Appendix C provides a method for
calculating a planning distance to fish and wildlife and
sensitive environments and public drinking water intakes
that may be impacted in the event of a worst case dis-
charge.
7.6 The procedures discussed in sections 7.6.1—7.6.3
of this appendix must be used to determine appropriate
response resources for facilities with Group 5 oils.
7.6.1 The owner or operator of a facility that handles,
stores, or transports Group 5 oils shall, as appropriate,
identify the response resources available by contract or
other approved means, as described in § 112.2. The equip-
ment identified in a response plan shall, as appropriate,
include:
(1) Sonar, sampling equipment, or other methods for
locating the oil on the bottom or suspended in the water
column;
(2) Containment boom, sorbent boom, silt curtains, or
other methods for containing the oil that may remain
floating on the surface or to reduce spreading on the bot-
tom;
(3) Dredges, pumps, or other equipment necessary to
recover oil from the bottom and shoreline;
30
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Pt. 112, App. E
(4) Equipment necessary to assess the impact of such (3) Other appropriate equipment necessary to respond
discharges; and to a discharge involving the type of oil carried.
(5) Other appropriate equipment necessary to respond 7.7.4 Response resources identified in a response plan
to a discharge involving the type of oil handled, stored, according to section 7.7.3 of this appendix must be capa-
or transported. ble of commencing an effective on-scene response within
7.6.2 Response resources identified in a response plan the applicable tier response times in section 5.3 of this
for a facility that handles, stores, or transports Group 5 appendix.
oils under section 7.6.1 of this appendix shall be capable 775 A resporise pian must Mentrfy response re-
of being deployed (on site) within 24 hours of discovery sources with fire fighting capability. The owner or opera-
of a discharge to the area where the facility is operating. tor of a faclllty that handles, stores, or transports non-pe-
7.6.3 A response plan must identify response re- troleum oils that does not have adequate fire fighting re-
sources with fire fighting capability. The owner or opera- sources located at the facility or that cannot rely on suffi-
tor of a facility that handles, stores, or transports Group clent iocai flre fighting resources must identify adequate
5 oils that does not have adequate fire fighting resources flre fighting resources. It is recommended that the owner
located at the facility or that cannot rely on sufficient or operator ensure, by contract or other approved means
local fire fighting resources must identify adequate fire as described in § 112.2, the availability of these resources.
fighting resources. It is recommended that the owner or The response plan must also identify an individual located
operator ensure, by contract or other approved means as at the facihty to work with the fire department for non-
described in § 112.2, the availability of these resources. petroleum fires. This individual shall also verify that suf-
The response plan shall also identify an individual located flclent well-trained fire fighting resources are available
at the facility to work with the fire department for Group wlmm a reasonable response time to a worst case sce-
5 oil fires. This individual shall also verify that sufficient nano. The individual may be the qualified individual
well-trained fire fighting resources are available within a identified in the response plan or another appropriate mdi-
reasonable response time to respond to a worst case dis- vidual located at the facility
charge. The individual may be the qualified individual
identified in the response plan or another appropriate indi- 8.0 Determining the Availability of Alternative Response
vidual located at the facility. Methods
7.7 The procedures described in sections 7.7.1-7.7.5
of this appendix must be used to determine appropriate SA For dispersants to be identified in a response plan,
response plan development and evaluation criteria for fa- they must be on the NCP Product Schedule that ls mam-
cihties that handle, store, or transport non-petroleum oils. tamed b" EPA' (Some States have a llst of aPProved
Refer to section 8 of this appendix for information on the dispersants for use within State waters. These State-ap-
hmitations on the use of dispersants for inland and near- P™ed dispersants are listed on the NCP Product Sched-
7.7.1 An owner or operator of a facility that handles, 8-2 Identification of dispersant application in the plan
stores, or transports non-petroleum oil must provide mfor- does not lmP!y that the use of thls technique will be au-
mation in his or her plan that identifies: thonzed. Actual authorization for use during a spill re-
(1) Procedures and strategies for responding to a worst sPonse wl11 be governed by the provisions of the NCP
case discharge of non-petroleum oils to the maximum ex- and the applicable ACP. To date, dispersant application
tent practicable' and bas n°t been approved by ACPs for inland areas or shal-
(2) Sources of the equipment and supplies necessary to low nearshore areas.
locate, recover, and mitigate such a discharge. „„,,,• • , ^ • , r ^
_ -,. n r ... , , ,, 9.0 Additional Equipment Necessary to Sustain
7.7.2 An owner or operator oi a iacihty that handles, n „
L J Response Operations
stores, or transports non-petroleum oil must ensure that
any equipment identified in a response plan is capable of 9.1 A facility owner or operator shall, as appropriate,
operating in the conditions expected in the geographic ensure that sufficient numbers of trained personnel and
area(s) (i.e., operating environments) in which the facility boats, aerial spotting aircraft, containment boom, sorbent
operates using the criteria in Table 1 of this appendix. materials, boom anchoring materials, and other supplies
When evaluating the operability of equipment, the facility are available to sustain response operations to completion.
owner or operator must consider limitations that are iden- All such equipment must be suitable for use with the pri-
tified in the appropriate ACPs, including: mary equipment identified in the response plan. A facility
(1) Ice conditions; owner or operator is not required to list these resources,
(2) Debris; but shall certify their availability.
(3) Temperature ranges; and 9.2 A facility owner or operator shall evaluate the
(4) Weather-related visibility. availability of adequate temporary storage capacity to sus-
7.7.3 The owner or operator of a facility that handles, tain the effective daily recovery capacities from equip-
stores, or transports non-petroleum oil must identify the ment identified in the plan. Because of the inefficiencies
response resources that are available by contract or other of oil spill recovery devices, response plans must identify
approved means, as described in §112.2. The equipment daily storage capacity equivalent to twice the effective
described in the response plan shall, as appropriate, in- daily recovery capacity required on-scene. This temporary
elude: storage capacity may be reduced if a facility owner or op-
(1) Containment boom, sorbent boom, or other methods erator can demonstrate by waste stream analysis that the
for containing oil floating on the surface or to protect efficiencies of the oil recovery devices, ability to decant
shorelines from impact; waste, or the availability of alternative temporary storage
(2) Oil recovery devices appropriate for the type of or disposal locations will reduce the overall volume of
non-petroleum oil carried; and oily material storage requirement.
31
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Pt. 112, App. E
9.3 A facility owner or operator shall ensure that his
or her planning includes the capability to arrange for dis-
posal of recovered oil products. Specific disposal proce-
dures will be addressed in the applicable AGP.
10.0 References and Availability
10.1 All materials listed in this section are part of
EPA's rulemaking docket, and are located in the
Superfund Docket, Room M2615, at the U.S. Environ-
mental Protection Agency, 401 M Street, SW., Washing-
ton, DC 20460 (Docket Number SPCC-2P). The docket
is available for inspection between 9:00 a.m. and 4:00
p.m., Monday through Friday, excluding Federal holidays.
Appointments to review the docket can be made by call-
ing 202-260-3046. The public may copy a maximum of
266 pages from any regulatory docket at no cost. If the
number of pages copied exceeds 266, however, a charge
of 15 cents will be incurred for each additional page, plus
a $25.00 administrative fee. Charges for copies and dock-
et hours are subject to change.
10.2 The docket will mail copies of materials to re-
questors who are outside the Washington D.C. metro area.
Materials may be available from other sources, as noted
in this section. The ERNS/SPCC Information line at 202-
260-2342 or the RCRA/Superfund Hotline at 800-424-
9346 may also provide additional information on where
to obtain documents. To contact the RCRA/Superfund
Hotline in the Washington, DC metropolitan area, dial
703—4-12-9810. The Telecommunications Device for the
Deaf (TDD) Hotline number is 800-553-7672, or, in the
Washington, DC metropolitan area, 703-412-3323.
10.3 Documents Referenced
(1) National Preparedness for Response Exercise Pro-
gram (PREP). The PREP draft guidelines are available
from United States Coast Guard Headquarters (G-MEP-
4), 2100 Second Street, SW., Washington, DC 20593.
(See 58 FR 53990, October 19, 1993, Notice of Availabil-
ity of PREP Guidelines).
(2) "Guidance for Facility and Vessel Response Plans:
Fish and Wildlife and Sensitive Environments" (pub-
lished in the FEDERAL REGISTER by DOC/NCAA at 59
FR 14713, March 29, 1994). The guidance is available in
the Superfund Docket (see sections 10.1 and 10.2 of this
appendix).
(3) ASTM Standards. ASTM F 715, ASTM F 989,
ASTM F 631-80, ASTM F 808-83 (1988). The ASTM
standards are available from the American Society for
Testing and Materials, 1916 Race Street, Philadelphia, PA
19103-1187.
TABLE 1 TO APPENDIX E—RESPONSE RESOURCE OPERATING CRITERIA
Oil Recovery Devices
Operating environment
Inland
Great Lakes
Ocean
Significant wave
height1
< 1 foot
< 3 feet
< 4 feet
< 6 feet
Sea state
1
2
2-3
3-4
Boom
Boom property
Significant Wave Height1
Sea State
Boom height — inches (draft plus freeboard)
Skirt Fabric Tensile Strength — pounds
Skirt Fabric Tear Strenath — oounds
Rivers and
canals
< 1
1
6-18
2'1
4500
200
100
Us
Inland
<3
2
18-42
2'1
1 5 000-
20,000.
300
100
e
Great Lakes
<4
2-3
18-42
2'1
1 5 000-
20,000.
300
100
Ocean
<6
3-4
>42
3'1 to 4'1
> 20 000
500
125
1 Oil recovery devices and boom shall be at least capable of operating in wave heights up to and including the values listed in
Table 1 for each operating environment.
TABLE 2 TO APPENDIX E—REMOVAL CAPACITY PLANNING TABLE
Spill location
Rivers and canals
Nearshore/inland Great Lakes
Sustainability of on-water oil recovery
Oil group1
3 days
4 days
Percent nat- Percent re- ,-, ... Percent nat- Percent re- ,-, ...
ural dissipa- covered Perc^nt Ol1 ural dissipa- covereH Percent Ol1
tion floating oil onshore tion
floating oil
Onshore
3. Medium crudes and fuels
4. Heavy crudes and fuels
80
40
20
5
10
15
15
20
10
45
65
75
80
50
30
10
20
50
50
50
10
30
50
70
Group 5 oils are defined in section 1.2.7 of this appendix; the response resource considerations are outlined in section 7.6 of
this appendix.
1 Non-petroleum oils are defined in section 1.2.3 of this appendix; the response resource considerations are outlined in section
7.7 of this appendix.
32
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Pt. 112, App. E
TABLE 3 TO APPENDIX E—EMULSIFICATION
FACTORS FOR PETROLEUM OIL GROUPS 1
Non-Persistent Oil:
Group 1 1.0
Persistent Oil:
Group 2 1.8
Group 3 2.0
Group 4 1.4
Group 5 oils are defined in section 1.2.7 of
this appendix; the response resource con-
siderations are outlined in section 7.6 of
this appendix.
1 See sections 1.2.2 and 1.2.7 of this appendix for group
designations for non-persistent and persistent oils, respec-
tively.
TABLE 4 TO APPENDIX E—ON-WATER OIL
RECOVERY RESOURCE MOBILIZATION FACTORS
Operating area
Rivers and Canals
Inland/Nearshore Great Lakes
Tier 1
0.30
0.15
Tier 2
0.40
0.25
TierS
0.60
0.40
Note: These mobilization factors are for total resources mo-
bilized, not incremental response resources.
33
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Pt. 112, App. E
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Pt. 112, App. F
ATTACHMENTS TO APPENDIX E
EC01MR92.011
EC01MR92.012
EC01MR92.013
EC01MR92.014
[59 FR 34111, July 1, 1994; 59 FR 49006, Sept. 26,
1994]
APPENDIX F To PART 112—FACILITY-SPECIFIC
RESPONSE PLAN
Table of Contents
1.0 Model Facility-Specific Response Plan
1.1 Emergency Response Action Plan
1.2 Facility Information
1.3 Emergency Response Information
1.3.1 Notification
1.3.2 Response Equipment List
1. .3 Response Equipment Testing/Deployment
1. .4 Personnel
1. .5 Evacuation Plans
1. .6 Qualified Individual's Duties
1.4 Hazard Evaluation
1.4.1 Hazard Identification
1.4.2 Vulnerability Analysis
1.4.3 Analysis of the Potential for an Oil Spill
1.4.4 Facility Reportable Oil Spill History
1.5 Discharge Scenarios
1.5.1 Small and Medium Discharges
1.5.2 Worst Case Discharge
1.6 Discharge Detection Systems
1.6.1 Discharge Detection By Personnel
1.6.2 Automated Discharge Detection
1.7 Plan Implementation
1.7.1 Response Resources for Small, Medium, and
Worst Case Spills
1.7.2 Disposal Plans
1.7.3 Containment and Drainage Planning
1.8 Self-Inspection, Drills/Exercises, and Response
Training
1.8.1 Facility Self-Inspection
1.8.1.1 Tank Inspection
1.8.1.2 Response Equipment Inspection
1.8.1.3 Secondary Containment Inspection
1.8.2 Facility Drills/Exercises
1.8.2.1 Qualified Individual Notification Drill Logs
1.8.2.2 Spill Management Team Tabletop Exercise
Logs
1.8.3 Response Training
1.8.3.1 Personnel Response Training Logs
1.8.3.2 Discharge Prevention Meeting Logs
1.9 Diagrams
1.10 Security
2.0 Response Plan Cover Sheet
3.0 Acronyms
4.0 References
1.0 Model Facility-Specific Response Plan
(A) Owners or operators of facilities regulated under
this part which pose a threat of substantial harm to the
environment by discharging oil into or on navigable wa-
ters or adjoining shorelines are required to prepare and
submit facility-specific response plans to EPA in accord-
ance with the provisions in this appendix. This appendix
further describes the required elements in § 112.20(h).
(B) Response plans must be sent to the appropriate
EPA Regional office. Figure F-l of this Appendix lists
each EPA Regional office and the address where owners
or operators must submit their response plans. Those fa-
cilities deemed by the Regional Administrator (RA) to
pose a threat of significant and substantial harm to the en-
vironment will have their plans reviewed and approved by
EPA. In certain cases, information required in the model
response plan is similar to information currently main-
tained in the facility's Spill Prevention, Control, and
Countermeasures (SPCC) Plan as required by 40 CFR
112.3. In these cases, owners or operators may reproduce
the information and include a photocopy in the response
plan.
(C) A complex may develop a single response plan
with a set of core elements for all regulating agencies and
separate sections for the non-transportation-related and
transportation-related components, as described in
§112.20(h). Owners or operators of large facilities that
handle, store, or transport oil at more than one geographi-
cally distinct location (e.g., oil storage areas at opposite
ends of a single, continuous parcel of property) shall, as
appropriate, develop separate sections of the response
plan for each storage area.
EC01MR92.015
1.1 Emergency Response Action Plan
Several sections of the response plan shall be co-lo-
cated for easy access by response personnel during an ac-
tual emergency or oil spill. This collection of sections
shall be called the Emergency Response Action Plan. The
Agency intends that the Action Plan contain only as much
information as is necessary to combat the spill and be ar-
ranged so response actions are not delayed. The Action
Plan may be arranged in a number of ways. For example,
the sections of the Emergency Response Action Plan may
be photocopies or condensed versions of the forms in-
cluded in the associated sections of the response plan.
Each Emergency Response Action Plan section may be
tabbed for quick reference. The Action Plan shall be
maintained in the front of the same binder that contains
the complete response plan or it shall be contained in a
separate binder. In the latter case, both binders shall be
kept together so that the entire plan can be accessed by
the qualified individual and appropriate spill response per-
sonnel. The Emergency Response Action Plan shall be
made up of the following sections:
1. Qualified Individual Information (Section 1.2) partial
2. Emergency Notification Phone List (Section 1.3.1) par-
tial
3. Spill Response Notification Form (Section 1.3.1) partial
4. Response Equipment List and Location (Section 1.3.2)
complete
5. Response Equipment Testing and Deployment (Section
1.3.3) complete
6. Facility Response Team (Section 1.3.4) partial
7. Evacuation Plan (Section 1.3.5) condensed
8. Immediate Actions (Section 1.7.1) complete
9. Facility Diagram (Section 1.9) complete
1.2 Facility Information
The facility information form is designed to provide an
overview of the site and a description of past activities at
the facility. Much of the information required by this sec-
tion may be obtained from the facility's existing SPCC
Plan.
35
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Pt. 112, App. F
1.2.1 Facility name and location: Enter facility name
and street address. Enter the address of corporate head-
quarters only if corporate headquarters are physically lo-
cated at the facility. Include city, county, state, zip code,
and phone number.
1.2.2 Latitude and Longitude: Enter the latitude and
longitude of the facility. Include degrees, minutes, and
seconds of the main entrance of the facility.
1.2.3 Wellhead Protection Area: Indicate if the facil-
ity is located in or drains into a wellhead protection area
as defined by the Safe Drinking Water Act of 1986
(SDWA). 1 The response plan requirements in the Well-
head Protection Program are outlined by the State or Ter-
ritory in which the facility resides.
1.2.4 Owner/operator: Write the name of the com-
pany or person operating the facility and the name of the
person or company that owns the facility, if the two are
different. List the address of the owner, if the two are dif-
ferent.
1.2.5 Qualified Individual: Write the name of the
qualified individual for the entire facility. If more than
one person is listed, each individual indicated in this sec-
tion shall have full authority to implement the facility re-
sponse plan. For each individual, list: name, position,
home and work addresses (street addresses, not P.O.
boxes), emergency phone number, and specific response
training experience.
1.2.6 Date of Oil Storage Start-up: Enter the year
which the present facility first started storing oil.
1.2.7 Current Operation: Briefly describe the facili-
ty's operations and include the Standard Industry Classi-
fication (SIC) code.
1.2.8 Dates and Type of Substantial Expansion: In-
clude information on expansions that have occurred at the
facility. Examples of such expansions include, but are not
limited to: Throughput expansion, addition of a product
line, change of a product line, and installation of addi-
tional oil storage capacity. The data provided shall in-
clude all facility historical information and detail the ex-
pansion of the facility. An example of substantial expan-
sion is any material alteration of the facility which causes
the owner or operator of the facility to re-evaluate and in-
crease the response equipment necessary to adequately re-
spond to a worst case discharge from the facility.
Date of Last Update: _
FACILITY INFORMATION FORM
Facility Name: --
Location (Street Address):
City: State: Zip:
County:
Latitude: _
onds
Longitude:
Seconds
Phone Number: ( )
_ Degrees Minutes _
Sec-
Degrees
Minutes
Wellhead Protection Area:
Owner:
1A wellhead protection area is defined as the surface
and subsurface area surrounding a water well or wellfield,
supplying a public water system, through which contami-
nants are reasonably likely to move toward and reach
such water well or wellfield. For further information re-
garding State and territory protection programs, facility
owners or operators may contact the SDWA Hotline at 1-
800-426^791.
Owner Location (Street Address):
(if different from Facility Address)
City: State: Zip:
County:
Phone Number: ( )
Operator (if not Owner):
Qualified Individual(s): (attach additional sheets if more
than one)
Name:
Position:
Work Address:
Home Address:
Emergency Phone Number: (
Date of Oil Storage Start-up:
Current Operations:
Date(s) and Type(s) of Substantial Expansion(s):
(Attach additional sheets if necessary)
1.3 Emergency Response Information
(A) The information provided in this section
shall describe what will be needed in an actual
emergency involving the discharge of oil or a
combination of hazardous substances and oil dis-
charge. The Emergency Response Information sec-
tion of the plan must include the following com-
ponents:
(1) The information provided in the Emergency Notifi-
cation Phone List in section 1.3.1 identifies and prioritizes
the names and phone numbers of the organizations and
personnel that need to be notified immediately in the
event of an emergency. This section shall include all the
appropriate phone numbers for the facility. These num-
bers must be verified each time the plan is updated. The
contact list must be accessible to all facility employees to
ensure that, in case of a discharge, any employee on site
could immediately notify the appropriate parties.
(2) The Spill Response Notification Form in section
1.3.1 creates a checklist of information that shall be pro-
vided to the National Response Center (NRC) and other
response personnel. All information on this checklist must
be known at the time of notification, or be in the process
of being collected. This notification form is based on a
similar form used by the NRC. Note: Do not delay spill
notification to collect the information on the list.
(3) Section 1.3.2 provides a description of the facility's
list of emergency response equipment and location of the
response equipment. When appropriate, the amount of oil
that emergency response equipment can handle and any
limitations (e.g., launching sites) must be described.
(4) Section 1.3.3 provides information regarding re-
sponse equipment tests and deployment drills. Response
equipment deployment exercises shall be conducted to en-
sure that response equipment is operational and the per-
sonnel who would operate the equipment in a spill re-
sponse are capable of deploying and operating it. Only a
representative sample of each type of response equipment
needs to be deployed and operated, as long as the remain-
der is properly maintained. If appropriate, testing of re-
sponse equipment may be conducted while it is being de-
ployed. Facilities without facility-owned response equip-
ment must ensure that the oil spill removal organization
that is identified in the response plan to provide this re-
sponse equipment certifies that the deployment exercises
36
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Pt. 112, App. F
have been met. Refer to the National Preparedness for
Response Exercise Program (PREP) Guidelines (see Ap-
pendix E to this part, section 10, for availability), which
satisfy Oil Pollution Act (OPA) response exercise require-
ments.
(5) Section 1.3.4 lists the facility response personnel,
including those employed by the facility and those under
contract to the facility for response activities, the amount
of time needed for personnel to respond, their responsibil-
ity in the case of an emergency, and their level of re-
sponse training. Three different forms are included in this
section. The Emergency Response Personnel List shall be
composed of all personnel employed by the facility whose
duties involve responding to emergencies, including oil
spills, even when they are not physically present at the
site. An example of this type of person would be the
Building Engineer-in-Charge or Plant Fire Chief. The sec-
ond form is a list of the Emergency Response Contractors
(both primary and secondary) retained by the facility. Any
changes in contractor status must be reflected in updates
to the response plan. Evidence of contracts with response
contractors shall be included in this section so that the
availability of resources can be verified. The last form is
the Facility Response Team List, which shall be com-
posed of both emergency response personnel (referenced
by job title/position) and emergency response contractors,
included in one of the two lists described above, that will
respond immediately upon discovery of an oil spill or
other emergency (i.e., the first people to respond). These
are to be persons normally on the facility premises or pri-
mary response contractors. Examples of these personnel
would be the Facility Hazardous Materials (HAZMAT)
Spill Team 1, Facility Fire Engine Company 1, Produc-
tion Supervisor, or Transfer Supervisor. Company person-
nel must be able to respond immediately and adequately
if contractor support is not available.
(6) Section 1.3.5 lists factors that must, as appropriate,
be considered when preparing an evacuation plan.
(7) Section 1.3.6 references the responsibilities of the
qualified individual for the facility in the event of an
emergency.
(B) The information provided in the emergency re-
sponse section will aid in the assessment of the facility's
ability to respond to a worst case discharge and will iden-
tify additional assistance that may be needed. In addition,
the facility owner or operator may want to produce a wal-
let-size card containing a checklist of the immediate re-
sponse and notification steps to be taken in the event of
an oil discharge.
1.3.1 Notification
Date of Last Update:
EMERGENCY NOTIFICATION PHONE LIST WHOM To
NOTIFY
Reporter's Name:
Date:
Facility Name:
Owner Name:
Facility Identification Number:
Date and Time of Each NRC Notification:
Organization
Phone No.
Organization
Phone No.
2. Qualified Individual:
Evening Phone:
3. Company Response Team:
Evening Phone:
4. Federal On-Scene Coordinator (OSC)
and/or Regional Response Center
(RRC):
Evening Phone(s):
Pager Number(s):
5. Local Response Team (Fire Dept./Co-
operatives):
6. Fire Marshall:
Evening Phone:
7. State Emergency Response Commis-
sion (SERC):
Evening Phone:
8. State Police:
9. Local Emergency Planning Committee
(LEPC):
10. Local Water Supply System:
Evening Phone:
11. Weather Report:
12. Local Television/Radio Station for
Evacuation Notification:
13. Hospitals:
SPILL RESPONSE NOTIFICATION FORM
Reporter's Last Name:
First:
M.I.:
Position:
Phone Numbers:
Day( )
Evening ( )
Company:
Organization Type:
Address:
1. National Response Center (NRC):
1-800-424-8802
City: -
State: -
Zip:
37
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Pt. 112, App. F
(Y/N)
Meeting Federal Obligations to Report? (Y/N)
Date Called:
Calling for Responsible Party? (Y/N) Time
Called:
Incident Description
Date of Incident-
Time of Incident: AM/PM
'd t Add —1
CHRIS Code Discharged quan- Un|t Qf measufe
Nearest City:
Zip-
Distance from City:
Direction from City:
Section:
Borough:
Container Type:
State: County:
Units of
Township :
Tank Oil
Measure:
Range:
Storage Capacity:
Units of Measure:
Facility Oil Storage C;
Seconds
Facility Longitude:
Seconds
Material Dis-
charged in water
apacity:
Degrees
Material
Quantity
Units of Meas-
Minutes
Unit of measure
Response Action
Actions Taken to Correct, Control or Mitigate Incident:
Impact
Caller Notifications
EPA? (Y/N) USCG? (Y/N) State?
(Y/N)
Other? (Y/N) Describe:
Number of Injuries:
Were there Evacuations?
ated:
Was there any Damage? _
Damage in Dollars (approximate):
Medium Affected:
Description:
Number of Deaths:
(Y/N) Number Evacu-
1.3.2 Response Equipment List
Date of Last Update:
FACILITY RESPONSE EQUIPMENT LIST
1. Skimmers/Pumps—Operational Status:
Type, Model, and Year:
More Information about Medium:
Type Model Year
Number:
Capacity: gal./min.
Daily Effective Recovery Rate:
Storage Location(s):
Additional Information
Any information about the incident not recorded else-
where in the report:
Date Fuel Last Changed:
2. Boom—Operational Status:
Type, Model, and Year:
Type Model Year
Number:
Size (length):
Containment Area:
Storage Location: -
_ft.
sq. ft.
3. Chemicals Stored (Dispersants listed on EPA's NCP
Product Schedule)
Type
Amount
Date
purchased
Treatment
capacity
Storage
location
38
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Pt. 112, App. F
Type
Amount
Date
purchased
Treatment
capacity
Storage
location
Were appropriate procedures used to receive approval Name and State of On-Scene Coordinator (OSC) au-
for use of dispersants in accordance with the NCP (40 thorizing use: .
CFR 300.910) and the Area Contingency Plan (AGP), Date Authorized: .
where applicable? (Y/N). 4. Dispersant Dispensing Equipment—Operational Sta-
tus: .
Type and year
Capacity
Storage
location
Response
time
(minutes)
5. Sorbents—Operational Status: -
Type and Year Purchased:
Amount:
Absorption Capacity (gal.):
Storage Location(s):
6. Hand Tools—Operational Status:
Type and year
Quantity
Storage
location
7. Communication Equipment (include operating fre-
quency and channel and/or cellular phone numbers)—
Operational Status:
Type and year
Quantity
Storage location/
number
Type and year
Quantity
Storage
location
9. Other (e.g., Heavy Equipment, Boats and Motors)-
Operational Status:
Type and year
Quantity
Storage
location
1.3.3 Response Equipment Testing/Deployment
Date of Last Update:
Response Equipment Testing and Deployment Drill Log
Last Inspection or Response Equipment Test Date:
8. Fire Fighting and Personnel Protective Equipment— Inspection Frequency:
Operational Status: Last Deployment Drill Date:
Deployment Frequency:
Type and year
Quantity
Storage
location
Oil Spill Removal Organization Certification (if applica-
ble):
1.3.4 Personnel
Date of Last Update:
39
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Pt. 112, App. F
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Pt. 112, App. F
1.3. J Evacuation Plans gency response personnel's health and safety shall be
. , - . „ , , ..,..,.... .. evaluated, as well as the facility's oil spill history.
1.3.5.1 Based on the analysis of the facility, as dis-
cussed elsewhere in the plan, a facility-wide evacuation 141 Hazard Identification
plan shall be developed. In addition, plans to evacuate
parts of the facility that are at a high risk of exposure in The Tank and Surface Impoundment (SI) forms, or
the event of a spill or other release must be developed. their equivalent, that are part of this section must be corn-
Evacuation routes must be shown on a diagram of the fa- Pleted according to the directions below. ("Surface Im-
cihty (see section 1.9 of this appendix). When developing poundment" means a facility or part of a facility which
evacuation plans, consideration must be given to the fol- ls a natural topographic depression, man-made excavation,
lowing factors, as appropriate: or dlked area formed primarily of earthen materials (al-
(1) Location of stored materials; though it may be lined with man-made materials), which
(2) Hazard imposed by spilled material; ls designed to hold an accumulation of liquid wastes or
(3) Spill flow direction' wastes containing free liquids, and which is not an injec-
(4) Prevailing wind direction and speed; tion well or a seepage facility.) Similar worksheets, or
(5) Water currents, tides, or wave conditions (if appli- their equivalent, must be developed for any other type of
cable)- storage containers.
(6) Arrival route of emergency response personnel and (1) List each tank at the facility with a separate and
response equipment' distinct identifier. Begin aboveground tank identifiers with
(7) Evacuation routes; an "A" and belowground tank identifiers with a "B", or
(8) Alternative routes of evacuation; submit multiple sheets with the aboveground tanks and
(9) Transportation of injured personnel to nearest emer- belowground tanks on separate sheets.
gency medical facility; (2) Use gallons for the maximum capacity of a tank;
(10) Location of alarm/notification systems; and use square feet for the area.
(11) The need for a centralized check-in area for evacu- (3) Using the appropriate identifiers and the following
ation validation (roll call); instructions, fill in the appropriate forms:
(12) Selection of a mitigation command center; and (a) Tank or SI number—Using the aforementioned
(13) Location of shelter at the facility as an alternative identifiers (A or B) or multiple reporting sheets, identify
to evacuation. each tank or SI at the facility that stores oil or hazardous
1.3.5.2 One resource that may be helpful to owners or materials.
operators in preparing this section of the response plan is 0) Substance Stored—For each tank or SI identified,
The Handbook of Chemical Hazard Analysis Procedures record the material that is stored therein. If the tank or
by the Federal Emergency Management Agency (FEMA), SI ls used to store more than one material, list all of the
Department of Transportation POT), and EPA. The stored materials.
Handbook of Chemical Hazard Analysis Procedures is (c) Quantity Stored—For each material stored in each
available from: FEMA , Publication Office, 500 C. Street, tank or SI, report the average volume of material stored
S.W., Washington, DC 20472, (202) 646-3484. on any 8lven day-
1.3.5.3 As specified in § 112.20(h)(l)(vi), the facility (d) Tank TyPe or Surface Area/Year—For each tank,
owner or operator must reference existing community rePort the type of tank (e.g., floating top), and the year
evacuation plans, as appropriate. the tank was originally installed. If the tank has been re-
fabricated, the year that the latest refabrication was com-
1.3.6 Qualified Individual's Duties pleted must be recorded in parentheses next to the year
_ . . ,, . . . . ........... installed. For each SI, record the surface area of the im-
The duties of the designated qualified individual are dmmt and ^ lt went mto semce
specified in §112.20(h)(3Xix). The qualified individual s / \ ->. f • ^ -^ -r, j ,.1 ,.-1
, . , , ., , , , . , , . . (e) Maximum Capacity—Record the operational maxi-
duties must be described and be consistent with the mini- mum ; for each ^ and gl If ^ maxlmum ca_
mum requirements in § 112.20(h)(3)(ix). to addition, the ; vanes wifli ^ s record ^ and [ower
qualified individual must be identified with the Facility ,• -,
Information in section 1.2 of the response plan. ^Failure/Cause—Record the cause and date of any
1 4 Hazard Evaluation tank. or ^ ^a^ure which has resulted in a loss of tank or
SI contents.
This section requires the facility owner or operator to (4) Using the numbers from the tank and SI forms,
examine the facility's operations closely and to predict label a schematic drawing of the facility. This drawing
where discharges could occur. Hazard evaluation is a shall be identical to any schematic drawings included in
widely used industry practice that allows facility owners the SPCC Plan.
or operators to develop a complete understanding of po- (5) Using knowledge of the facility and its operations,
tential hazards and the response actions necessary to ad- describe the following in writing:
dress these hazards. The Handbook of Chemical Hazard (a) The loading and unloading of transportation vehi-
Analysis Procedures, prepared by the EPA, DOT, and the cles that risk the discharge of oil or release of hazardous
FEMA and the Hazardous Materials Emergency Planning substances during transport processes. These operations
Guide (NRT-1), prepared by the National Response Team may include loading and unloading of trucks, railroad
are good references for conducting a hazard analysis. cars, or vessels. Estimate the volume of material involved
Hazard identification and evaluation will assist facility in transfer operations, if the exact volume cannot be de-
owners or operators in planning for potential discharges, termined.
thereby reducing the severity of discharge impacts that (b) Day-to-day operations that may present a risk of
may occur in the future. The evaluation also may help the discharging oil or releasing a hazardous substance. These
operator identify and correct potential sources of dis- activities include scheduled venting, piping repair or re-
charges. In addition, special hazards to workers and emer- placement, valve maintenance, transfer of tank contents
43
-------
Pt. 112, App. F
from one tank to another, etc. (not including transpor-
tation-related activities). Estimate the volume of material
involved in these operations, if the exact volume cannot
be determined.
(c) The secondary containment volume associated with
each tank and/or transfer point at the facility. The num-
bering scheme developed on the tables, or an equivalent
system, must be used to identify each containment area.
Capacities must be listed for each individual unit (tanks,
slumps, drainage traps, and ponds), as well as the facility
total.
(d) Normal daily throughput for the facility and any ef-
fect on potential discharge volumes that a negative or
positive change in that throughput may cause.
HAZARD IDENTIFICATION TANKS 1
Date of Last Update:
Tank No.
Substance Stored
(Oil and Hazard-
ous Substance)
Quantity Stored
(gallons)
Tank Type/Year
Maximum Capacity
(gallons)
Failure/Cause
1 Tank = any container that stores oil.
Attach as many sheets as necessary.
HAZARD IDENTIFICATION SURFACE IMPOUNDMENTS (Sis)
Date of Last Update:
SI No.
Substance Stored
Quantity Stored
(gallons)
Surface Area/Year
Maximum Capacity
(gallons)
Failure/Cause
Attach as many sheets as necessary.
1.4.2 Vulnerability Analysis
The vulnerability analysis shall address the potential ef-
fects (i.e., to human health, property, or the environment)
of an oil spill. Attachment C-III to Appendix C to this
part provides a method that owners or operators shall use
to determine appropriate distances from the facility to fish
and wildlife and sensitive environments. Owners or opera-
44
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Pt. 112, App. F
tors can use a comparable formula that is considered ac- (12) Description(s) of how each oil spill was detected.
ceptable by the RA. If a comparable formula is used, doc- The information solicited in this section may be similar
umentation of the reliability and analytical soundness of to requirements in 40 CFR 112.4(a). Any duplicate mfor-
the formula must be attached to the response plan cover mation required by § 112.4(a) may be photocopied and m-
sheet. This analysis must be prepared for each facility serted
and, as appropriate, must discuss the vulnerability of:
(1) Water intakes (drinking, cooling, or other); 1-5 Discharge Scenarios
(2) schools, jn ^s section, the owner or operator is required to pro-
(3) Medical facilities; v^e a description of the facility's worst case discharge,
(4) Residential areas; as well as a small and medmm spill, as appropriate. A
(5) Businesses; multi-level planning approach has been chosen because
(6) Wetlands or other sensitive environments;2 the response actions to a spill (i.e., necessary response
(7) Fish and wildlife; equipment, products, and personnel) are dependent on the
(8) Lakes and streams; magnitude of the spill. Planning for lesser discharges is
(9) Endangered flora and fauna; necessary because the nature of the response may be
(10) Recreational areas; qualitatively different depending on the quantity of the
(11) Transportation routes (air, land, and water); discharge. The facility owner or operator shall discuss the
(12) Utilities; and potential direction of the spill pathway.
(13) Other areas of economic importance (e.g., beaches, , _ , _ „ , , , , _ ,
...... ... . . . 1.5.1 Small and Medium Discharges
marinas) including terrestrially sensitive environments,
aquatic environments, and unique habitats. 1.5.1.1 To address multi-level planning requirements,
the owner or operator must consider types of facility-spe-
1.4.3 Analysis of the Potential for an Oil Spill clflc spln scenarios that may contribute to a small or me-
Each owner or operator shall analyze the probability of dlum sPllL The scenarios sha11 account for a11 the °Per-
a spill occurring at the facility. This analysis shall mcor- atlons that take Place at the facillty> mcludmS but not lin>
porate factors such as oil spill history, horizontal range of * e °'
a potential spill, and vulnerability to natural disaster, and * Loading and unloading of surface transportation;
shall, as appropriate, incorporate other factors such as }2{ baci\^ maintenance,
4. 1 TI i -11 -j • f 4.- c j 1 (3) Facility piping;
tank age. This analysis will provide information for devel- ;' _ / r r ° ,
,. , • r j- i j (4) Pumping stations and sumps;
oping discharge scenarios ior a worst case discharge and ;_; „., , , •,
F .? . °. . ...... &
. . . ... ...... ,
small and medium discharges and aid in the development
_ „., , , •,
(5) Oil storage tanks;
;,; ,. , . , ,, ,. ,
(6) Vehicle refueling; and
, . . . . . n r -11
of techniques to reduce the size and frequency of spills. and condltlon of faclllt and components.
The owner or operator may need to research the age of 1512 ^ seenalios shall also consider factors that
the tanks and the oil spill history at the facility. affi,ct ^ response efforts reqmred fey ^ faciUty These
1.4.4 Facility Reportable Oil Spill History mclude but are not llmlted to :
r (1) Size of the spill;
Briefly describe the facility's reportable oil spill3 his- (2) Proximity to downgradient wells, waterways, and
tory for the entire life of the facility to the extent that drinking water intakes;
such information is reasonably identifiable, including: (3) Proximity to fish and wildlife and sensitive environ-
(1) Date of discharge(s); ments;
(2) List of discharge causes; (4) Likelihood that the discharge will travel offsite (i.e.,
(3) Materials) discharged; topography,
(4) Amount discharged in gallons; drainage) ;
(5) Amount of discharge that reached navigable waters, (5) Location of the material spilled (i.e., on a concrete
if applicable; Pad or directly on the soil);
(6) Effectiveness and capacity of secondary contain- (6) Material discharged;
men£. (7) Weather or aquatic conditions (i.e., river flow);
(7) Clean-up actions taken; (8) Available remediation equipment;
(8) Steps taken to reduce possibility of recurrence; 9) Probability of a chain reaction of failures; and
,„,„,... . , . ... (10) Direction of spill pathway.
(9) Total oil storage capacity of the tank(s) or
impoundment(s) from which the material discharged; 152 Worst Case Discharge
(10) Enforcement actions;
(11) Effectiveness of monitoring equipment; and L5'2'1 to thls sectlon> the owner or °Perator must
identify the worst case discharge volume at the facility.
- Worksheets for production and non-production facility
2Refer to the DOC/NOAA "Guidance for Facility and owners or operators to use when calculating worst case
Vessel Response Plans: Fish and Wildlife and Sensitive discharge are presented in Appendix D to this part. When
Environments" (See appendix E to this part, section 10, planning for the worst case discharge response, all of the
for availability). aforementioned factors listed in the small and medium
3 As described in 40 CFR part 110, reportable oil spills discharge section of the response plan shall be addressed.
are those that: (a) violate applicable water quality stand- 1.5.2.2 For onshore storage facilities and production
ards, or (b) cause a film or sheen upon or discoloration facilities, permanently manifolded oil storage tanks are
of the surface of the water or adjoining shorelines or defined as tanks that are designed, installed, and/or oper-
cause a sludge or emulsion to be deposited beneath the ated in such a manner that the multiple tanks function as
surface of the water or upon adjoining shorelines. one storage unit (i.e., multiple tank volumes are equal-
45
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Pt. 112, App. F
ized). In this section of the response plan, owners or oper-
ators must provide evidence that oil storage tanks with
common piping or piping systems are not operated as one
unit. If such evidence is provided and is acceptable to the
RA, the worst case discharge volume shall be based on
the combined oil storage capacity of all manifold tanks or
the oil storage capacity of the largest single oil storage
tank within the secondary containment area, whichever is
greater. For permanently manifolded oil storage tanks that
function as one storage unit, the worst case discharge
shall be based on the combined oil storage capacity of all
manifolded tanks or the oil storage capacity of the largest
single tank within a secondary containment area, which-
ever is greater. For purposes of the worst case discharge
calculation, permanently manifolded oil storage tanks that
are separated by internal divisions for each tank are con-
sidered to be single tanks and individual manifolded tank
volumes are not combined.
1.6 Discharge Detection Systems
In this section, the facility owner or operator shall pro-
vide a detailed description of the procedures and equip-
ment used to detect discharges. A section on spill detec-
tion by personnel and a discussion of automated spill de-
tection, if applicable, shall be included for both regular
operations and after hours operations. In addition, the fa-
cility owner or operator shall discuss how the reliability
of any automated system will be checked and how fre-
quently the system will be inspected.
1.6.1 Discharge Detection by Personnel
In this section, facility owners or operators shall de-
scribe the procedures and personnel that will detect any
spill or uncontrolled discharge of oil or release of a haz-
ardous substance. A thorough discussion of facility in-
spections must be included. In addition, a description of
initial response actions shall be addressed. This section
shall reference section 1.3.1 of the response plan for
emergency response information.
1.6.2 Automated Discharge Detection
In this section, facility owners or operators must de-
scribe any automated spill detection equipment that the
facility has in place. This section shall include a discus-
sion of overfill alarms, secondary containment sensors,
etc. A discussion of the plans to verify an automated
alarm and the actions to be taken once verified must also
be included.
1.7 Plan Implementation
In this section, facility owners or operators must ex-
plain in detail how to implement the facility's emergency
response plan by describing response actions to be carried
out under the plan to ensure the safety of the facility and
to mitigate or prevent discharges described in section 1.5
of the response plan. This section shall include the identi-
fication of response resources for small, medium, and
worst case spills; disposal plans; and containment and
drainage planning. A list of those personnel who would
be involved in the cleanup shall be identified. Procedures
that the facility will use, where appropriate or necessary,
to update their plan after an oil spill event and the time
frame to update the plan must be described.
1.7.1 Response Resources for Small, Medium, and Worst
Case Spills
1.7.1.1 Once the spill scenarios have been identified
in section 1.5 of the response plan, the facility owner or
operator shall identify and describe implementation of the
response actions. The facility owner or operator shall
demonstrate accessibility to the proper response personnel
and equipment to effectively respond to all of the identi-
fied spill scenarios. The determination and demonstration
of adequate response capability are presented in Appendix
E to this part. In addition, steps to expedite the cleanup
of oil spills must be discussed. At a minimum, the follow-
ing items must be addressed:
(1) Emergency plans for spill response;
(2) Additional response training;
(3) Additional contracted help;
(4) Access to additional response equipment/experts;
and
(5) Ability to implement the plan including response
training and practice drills.
1.7.1.2A recommended form detailing immediate ac-
tions follows.
Oil Spill Response—Immediate Actions
1. Stop the product flow
2. Warn personnel
3. Shut off ignition
sources.
4. Initiate containment ....
5. Notify NRC
6. Notify OSC
7. Notify, as appropriate
Act quickly to secure
pumps, close valves,
etc.
Enforce safety and secu-
rity measures.
Motors, electrical circuits,
open flames, etc.
Around the tank and/or
in the water with oil
boom.
1_800-424-8802
Source: FOSS, Oil Spill Response—Emergency Proce-
dures, Revised December 3, 1992.
1.7.2 Disposal Plans
1.7.2.1 Facility owners or operators must describe
how and where the facility intends to recover, reuse, de-
contaminate, or dispose of materials after a discharge has
taken place. The appropriate permits required to transport
or dispose of recovered materials according to local,
State, and Federal requirements must be addressed. Mate-
rials that must be accounted for in the disposal plan, as
appropriate, include:
(1) Recovered product;
(2) Contaminated soil;
(3) Contaminated equipment and materials, including
drums, tank parts, valves, and shovels;
(4) Personnel protective equipment;
(5) Decontamination solutions;
(6) Adsorbents; and
(7) Spent chemicals.
1.7.2.2 These plans must be prepared in accordance
with Federal (e.g., the Resource Conservation and Recov-
ery Act [RCRA]), State, and local regulations, where ap-
plicable. A copy of the disposal plans from the facility's
SPCC Plan may be inserted with this section, including
any diagrams in those plans.
46
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Pt. 112, App. F
Material
1.
2.
3.
4.
Disposal fa-
cility
Location
RCRA per-
mit/manifest
1.7.3 Containment and Drainage Planning
A proper plan to contain and control a spill through
drainage may limit the threat of harm to human health
and the environment. This section shall describe how to
contain and control a spill through drainage, including:
(1) The available volume of containment (use the infor-
mation presented in section 1.4.1 of the response plan);
(2) The route of drainage from oil storage and transfer
areas;
(3) The construction materials used in drainage troughs;
(4) The type and number of valves and separators used
in the drainage system;
(5) Sump pump capacities;
(6) The containment capacity of weirs and booms that
might be used and their location (see section 1.3.2 of this
appendix); and
(7) Other cleanup materials.
In addition, facility owners or operators must meet the in-
spection and monitoring requirements for drainage con-
tained in 40 CFR 112.7(e). A copy of the containment
and drainage plans that are required in 40 CFR 112.7(e)
may be inserted in this section, including any diagrams in
those plans.
Note: The general permit for stormwater drainage may
contain additional requirements.
1.8 Self-Inspection, Drills/Exercises, and Response
Training
The owner or operator must develop programs for facil-
ity response training and for drills/exercises according to
the requirements of 40 CFR 112.21. Logs must be kept
for facility drills/exercises, personnel response training,
and spill prevention meetings. Much of the recordkeeping
information required by this section is also contained in
the SPCC Plan required by 40 CFR 112.3. These logs
may be included in the facility response plan or kept as
an annex to the facility response plan.
1.8.1 Facility Self-Inspection
Pursuant to 40 CFR 112.7(e)(8), each facility shall in-
clude the written procedures and records of inspections in
the SPCC Plan. The inspection shall include the tanks,
secondary containment, and response equipment at the fa-
cility. Records of the inspections of tanks and secondary
containment required by 40 CFR 112.7(e) shall be cross-
referenced in the response plan. The inspection of re-
sponse equipment is a new requirement in this plan. Fa-
cility self-inspection requires two steps: (1) a checklist of
things to inspect; and (2) a method of recording the actual
inspection and its findings. The date of each inspection
shall be noted. These records are required to be main-
tained for 5 years.
1.8.1.1 Tank Inspection
The tank inspection checklist presented below has been
included as guidance during inspections and monitoring.
Similar requirements exist in 40 CFR 112.7(e). Duplicate
information from the SPCC Plan may be photocopied and
inserted in this section. The inspection checklist consists
of the following items:
TANK INSPECTION CHECKLIST
1. Check tanks for leaks, specifically looking for:
A. drip marks;
B. discoloration of tanks;
C. puddles containing spilled or leaked material;
D. corrosion;
E. cracks; and
F. localized dead vegetation.
2. Check foundation for:
A. cracks;
B. discoloration;
C. puddles containing spilled or leaked material;
D. settling;
E. gaps between tank and foundation; and
F. damage caused by vegetation roots.
3. Check piping for:
A. droplets of stored material;
B. discoloration;
C. corrosion;
D. bowing of pipe between supports;
E. evidence of stored material seepage from valves or
seals; and
F. localized dead vegetation.
TANK/SURFACE IMPOUNDMENT INSPECTION LOG
Inspector
47
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Pt. 112, App. F
TANK/SURFACE IMPOUNDMENT INSPECTION LOG—Continued
Inspector
Tank or Sl#
Date
Comments
1.8.1.2 Response Equipment Inspection
Using the Emergency Response Equipment List pro-
vided in section 1.3.2 of the response plan, describe each
type of response equipment, checking for the following:
Response Equipment Checklist
1. Inventory (item and quantity);
RESPONSE EQUIPMENT INSPECTION LOG
[Use section 1.3.2 of the response plan as a checklist]
2. Storage location;
3. Accessibility (time to access and respond);
4. Operational status/condition;
5. Actual use/testing (last test date and frequency of
testing); and
6. Shelf life (present age, expected replacement date).
Please note any discrepancies between this list and the
available response equipment.
Inspector
Date
Comments
48
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Pt. 112, App. F
RESPONSE EQUIPMENT INSPECTION LOG—Continued
[Use section 1.3.2 of the response plan as a checklist]
Inspector
Date
Comments
1.8.1.3 Secondary Containment Inspection
Inspect the secondary containment (as described in sec-
tions 1.4.1 and 1.7.2 of the response plan), checking the
following:
Secondary Containment Checklist
1. Dike or berm system.
A. Level of precipitation in dike/available capacity;
B. Operational status of drainage valves;
C. Dike or berm permeability;
D. Debris;
E. Erosion;
F. Permeability of the earthen floor of diked area; and
G. Location/status of pipes, inlets, drainage beneath
tanks, etc.
2. Secondary containment
A. Cracks;
B. Discoloration;
C. Presence of spilled or leaked material (standing liq-
uid);
D. Corrosion; and
E. Valve conditions.
3. Retention and drainage ponds
A. Erosion;
B. Available capacity;
C. Presence of spilled or leaked material;
D. Debris; and
E. Stressed vegetation.
During inspection, make note of discrepancies in any of
the above mentioned items, and report them immediately
to the proper facility personnel. Similar requirements exist
in 40 CFR 112.7(e). Duplicate information from the
SPCC Plan may be photocopied and inserted in this sec-
tion.
1.8.2 Facility Drills/Exercises
(A) CWA section 311(j)(5), as amended by OPA, re-
quires the response plan to contain a description of facil-
ity drills/exercises. According to 40 CFR 112.21(c), the
facility owner or operator shall develop a program of fa-
cility response drills/exercises, including evaluation proce-
dures. Following the PREP guidelines (see Appendix E to
this part, section 10, for availability) would satisfy a fa-
cility's requirements for drills/exercises under this part.
Alternately, under § 112.21(c), a facility owner or opera-
tor may develop a program that is not based on the PREP
guidelines. Such a program is subject to approval by the
Regional Administrator based on the description of the
program provided in the response plan.
(B) The PREP Guidelines specify that the facility con-
duct internal and external drills/exercises. The internal ex-
ercises include: qualified individual notification drills,
spill management team tabletop exercises, equipment de-
ployment exercises, and unannounced exercises. External
exercises include Area Exercises. Credit for an Area or
Facility-specific Exercise will be given to the facility for
an actual response to a spill in the area if the plan was
utilized for response to the spill and the objectives of the
Exercise were met and were properly evaluated, docu-
mented and self-certified.
(C) Section 112.20(h)(8)(ii) requires the facility owner
or operator to provide a description of the drill/exercise
program to be carried out under the response plan. Quali-
fied Individual Notification Drill and Spill Management
Team Tabletop Drill logs shall be provided in sections
1.8.2.1 and 1.8.2.2, respectively. These logs may be in-
cluded in the facility response plan or kept as an annex
to the facility response plan. See section 1.3.3 of this ap-
pendix for Equipment Deployment Drill Logs.
1.8.2.1 Qualified Individual Notification Drill Logs
Qualified Individual Notification Drill Log
Date:
Company:
Qualified Individuals):
Emergency Scenario:
Evaluation:
Changes to be Implemented:
Time Table for Implementation:
49
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Pt. 112, App. F
1.8.2.2 Spill Management Team Tabletop Exercise Logs
Spill Management Team Tabletop Exercise Log
Date:
Company:
Qualified Individuals):
Emergency Scenario:
Evaluation:
Changes to be Implemented:
1.8.3 Response Training
Section 112.21 (a) requires facility owners or operators
to develop programs for facility response training. Facility
owners or operators are required by § 112.20(h)(8)(iii) to
provide a description of the response training program to
be carried out under the response plan. A facility's train-
ing program can be based on the USCG's Training Ele-
ments for Oil Spill Response, to the extent applicable to
facility operations, or another response training program
acceptable to the RA. The training elements are available
from Petty Officer Daniel Caras at (202) 267-6570 or fax
267^4085/4065. Personnel response training logs and dis-
charge prevention meeting logs shall be included in sec-
tions 1.8.3.1 and 1.8.3.2 of the response plan respectively.
These logs may be included in the facility response plan
or kept as an annex to the facility response plan.
Time Table for Implementation:
1.8.3.1 Personnel Response Training Logs
PERSONNEL RESPONSE TRAINING LOG
Name
Response training/date and number of
hours
Prevention training/date and number of
hours
1.8.3.2 Discharge Prevention Meetings Logs
DISCHARGE PREVENTION MEETING LOG
Date:
Attendees:
Subject/issue identified
Required action
Implementation date
50
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Pt. 112, App. F
1.9 Diagrams
The facility-specific response plan shall include the fol-
lowing diagrams. Additional diagrams that would aid in
the development of response plan sections may also be in-
cluded.
(1) The Site Plan Diagram shall, as appropriate, include
and identify:
(A) the entire facility to scale;
(B) above and below ground bulk oil storage tanks;
(C) the contents and capacities of bulk oil storage
tanks;
(D) the contents and capacity of drum oil storage areas;
(E) the contents and capacities of surface impound-
ments;
(F) process buildings;
(G) transfer areas;
(H) secondary containment systems (location and ca-
pacity);
(I) structures where hazardous materials are stored or
handled, including materials stored and capacity of
storage;
(J) location of communication and emergency response
equipment;
(K) location of electrical equipment which contains oil;
and
(L) for complexes only, the interface(s) (i.e., valve or
component) between the portion of the facility regu-
lated by EPA and the portion(s) regulated by other
Agencies. In most cases, this interface is defined as
the last valve inside secondary containment before
piping leaves the secondary containment area to con-
nect to the transportation-related portion of the facil-
ity (i.e., the structure used or intended to be used to
transfer oil to or from a vessel or pipeline). In the
absence of secondary containment, this interface is
the valve manifold adjacent to the tank nearest the
transfer structure as described above. The interface
may be defined differently at a specific facility if
agreed to by the RA and the appropriate Federal offi-
cial.
(2) The Site Drainage Plan Diagram shall, as appropriate,
include:
(A) major sanitary and storm sewers, manholes, and
drains;
(B) weirs and shut-off valves;
(C) surface water receiving streams;
(D) fire fighting water sources;
(E) other utilities;
(F) response personnel ingress and egress;
(G) response equipment transportation routes; and
(H) direction of spill flow from discharge points.
(3) The Site Evacuation Plan Diagram shall, as appro-
priate, include:
(A) site plan diagram with evacuation route(s); and
(B) location of evacuation regrouping areas.
2.20 Security
According to 40 CFR 112.7(e)(9), facilities are required
to maintain a certain level of security, as appropriate. In
this section, a description of the facility security shall be
provided and include, as appropriate:
(1) emergency cut-off locations (automatic or manual
valves);
(2) enclosures (e.g., fencing, etc.);
(3) guards and their duties, day and night;
(4) lighting;
(5) valve and pump locks; and
(6) pipeline connection caps.
The SPCC Plan contains similar information. Duplicate
information may be photocopied and inserted in this sec-
tion.
2.0 Response Plan Cover Sheet
A three-page form has been developed to be completed
and submitted to the RA by owners or operators who are
required to prepare and submit a facility-specific response
plan. The cover sheet (Attachment F-l) must accompany
the response plan to provide the Agency with basic infor-
mation concerning the facility. This section will describe
the Response Plan Cover Sheet and provide instructions
for its completion.
2.1 General Information
Owner/Operator of Facility: Enter the name of the
owner of the facility (if the owner is the operator). Enter
the operator of the facility if otherwise. If the owner/oper-
ator of the facility is a corporation, enter the name of the
facility's principal corporate executive. Enter as much of
the name as will fit in each section.
(1) Facility Name: Enter the proper name of the facil-
ity.
(2) Facility Address: Enter the street address, city,
State, and zip code.
(3) Facility Phone Number: Enter the phone number of
the facility.
(4) Latitude and Longitude: Enter the facility latitude
and longitude in degrees, minutes, and seconds.
(5) Dun and Bradstreet Number: Enter the facility's
Dun and Bradstreet number if available (this information
may be obtained from public library resources).
(6) Standard Industrial Classification (SIC) Code:
Enter the facility's SIC code as determined by the Office
of Management and Budget (this information may be ob-
tained from public library resources).
(7) Largest Oil Storage Tank Capacity: Enter the ca-
pacity in GALLONS of the largest aboveground oil stor-
age tank at the facility.
(8) Maximum Oil Storage Capacity: Enter the total
maximum capacity in GALLONS of all aboveground oil
storage tanks at the facility.
(9) Number of Oil Storage Tanks: Enter the number of
all aboveground oil storage tanks at the facility.
(10) Worst Case Discharge Amount: Using information
from the worksheets in Appendix D, enter the amount of
the worst case discharge in GALLONS.
(11) Facility Distance to Navigable Waters: Mark the
appropriate line for the nearest distance between an op-
portunity for discharge (i.e., oil storage tank, piping, or
flowline) and a navigable water.
2.2 Applicability of Substantial Harm Criteria
Using the flowchart provided in Attachment C-I to Ap-
pendix C to this part, mark the appropriate answer to each
question. Explanations of referenced terms can be found
in Appendix C to this part. If a comparable formula to
the ones described in Attachment C-III to Appendix C to
this part is used to calculate the planning distance, docu-
mentation of the reliability and analytical soundness of
the formula must be attached to the response plan cover
sheet.
51
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Pt. 112, App. F
2.3 Certification
Complete this block after all other questions have been
answered.
3.0 Acronyms
ACP: Area Contingency Plan
ASTM: American Society of Testing Materials
bbls: Barrels
bpd: Barrels per Day
bph: Barrels per Hour
CHRIS: Chemical Hazards Response Information System
CWA: Clean Water Act
DOI: Department of Interior
DOC: Department of Commerce
DOT: Department of Transportation
EPA: Environmental Protection Agency
FEMA: Federal Emergency Management Agency
FR: Federal Register
gal: Gallons
gpm: Gallons per Minute
HAZMAT: Hazardous Materials
LEPC: Local Emergency Planning Committee
MMS: Minerals Management Service (part of DOI)
NCP: National Oil and Hazardous Substances Pollution
Contingency Plan
NOAA: National Oceanic and Atmospheric Administra-
tion (part of DOC)
NRC: National Response Center
NRT: National Response Team
OPA: Oil Pollution Act of 1990
OSC: On-Scene Coordinator
PREP: National Preparedness for Response Exercise Pro-
gram
RA: Regional Administrator
RCRA: Resource Conservation and Recovery Act
RRC: Regional Response Centers
RRT: Regional Response Team
RSPA: Research and Special Programs Administration
SARA: Superfund Amendments and Reauthorization Act
SERC: State Emergency Response Commission
SDWA: Safe Drinking Water Act of 1986
SI: Surface Impoundment
SIC: Standard Industrial Classification
SPCC: Spill Prevention, Control, and Countermeasures
USCG: United States Coast Guard
4.0 References
CONCAWE. 1982. Methodologies for Hazard Analysis
and Risk Assessment in the Petroleum Refining and Stor-
age Industry. Prepared by CONG AWE's Risk Assessment
Ad-hoc Group.
U.S. Department of Housing and Urban Development.
1987. Siting of HUD-Assisted Projects Near Hazardous
Facilities: Acceptable Separation Distances from Explo-
sive and Flammable Hazards. Prepared by the Office of
Environment and Energy, Environmental Planning Divi-
sion, Department of Housing and Urban Development.
Washington, DC.
U.S. DOT, FEMA and U.S. EPA. Handbook of Chemi-
cal Hazard Analysis Procedures.
U.S. DOT, FEMA and U.S. EPA. Technical Guidance
for Hazards Analysis: Emergency Planning for Extremely
Hazardous Substances.
The National Response Team. 1987. Hazardous Mate-
rials Emergency Planning Guide. Washington, DC.
The National Response Team. 1990. Oil Spill Contin-
gency Planning, National Status: A Report to the Presi-
dent. Washington, DC. U.S. Government Printing Office.
Offshore Inspection and Enforcement Division. 1988.
Minerals Management Service, Offshore Inspection Pro-
gram: National Potential Incident of Noncompliance
(PINC) List. Reston, VA.
ATTACHMENTS TO APPENDIX F
ATTACHMENT F-l—RESPONSE PLAN COVER SHEET
This cover sheet will provide EPA with basic informa-
tion concerning the facility. It must accompany a submit-
ted facility response plan. Explanations and detailed in-
structions can be found in Appendix F. Please type or
write legibly in blue or black ink. Public reporting burden
for the collection of this information is estimated to vary
from 1 hour to 270 hours per response in the first year,
with an average of 5 hours per response. This estimate in-
cludes time for reviewing instructions, searching existing
data sources, gathering the data needed, and completing
and reviewing the collection of information. Send com-
ments regarding the burden estimate of this information,
including suggestions for reducing this burden to: Chief,
Information Policy Branch, PM-223, U.S. Environmental
Protection Agency, 401 M St., SW., Washington, D.C.
20460; and to the Office of Information and Regulatory
Affairs, Office of Management and Budget, Washington
D.C. 20503.
GENERAL INFORMATION
Owner/Operator of Facility:
Facility Name:
Facility Address (street address or route):
City, State, and U.S. Zip Code:
Facility Phone No.:
Latitude (Degrees: North):
degrees, minutes, seconds
Dun & Bradstreet Number: l
Largest Aboveground Oil Storage Tank Capacity (Gal-
lons):
Number of Aboveground Oil Storage Tanks:
Longitude (Degrees: West):
degrees, minutes, seconds
Standard Industrial Classification (SIC) Code: l
Maximum Oil Storage Capacity (Gallons):
Worst Case Oil Discharge Amount (Gallons):
1 These numbers may be obtained from public library
resources.
52
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Pt. 112, App. F
Facility Distance to Navigable Water. Mark the appro-
priate line.
0-Vi mile Vi-Vi mile Vz-l mile >1 mile
APPLICABILITY OF SUBSTANTIAL HARM CRITERIA
Does the facility transfer oil over-water2 to or from
vessels and does the facility have a total oil storage ca-
pacity greater than or equal to 42,000 gallons?
Yes
No
Does the facility have a total oil storage capacity great-
er than or equal to 1 million gallons and, within any stor-
age area, does the facility lack secondary containment2
that is sufficiently large to contain the capacity of the
largest aboveground oil storage tank plus sufficient
freeboard to allow for precipitation?
Yes
Does the facility have a total oil storage capacity great-
er than or equal to 1 million gallons and is the facility
located at a distance 2 (as calculated using the appropriate
formula in Appendix C or a comparable formula) such
that a discharge from the facility could cause injury to
fish and wildlife and sensitive environments?3
2 Explanations of the above-referenced terms can be
found in Appendix C to this part. If a comparable formula
to the ones contained in Attachment C-III is used to es-
tablish the appropriate distance to fish and wildlife and
sensitive environments or public drinking water intakes,
documentation of the reliability and analytical soundness
of the formula must be attached to this form.
3 For further description of fish and wildlife and sen-
sitive environments, see Appendices I, II, and III to DOC/
NCAA's "Guidance for Facility and Vessel Response
Plans: Fish and Wildlife and Sensitive Environments"
Yes
No
Does the facility have a total oil storage capacity greater
than or equal to 1 million gallons and is the facility lo-
cated at a distance 2 (as calculated using the appropriate
formula in Appendix C or a comparable formula) such
that a discharge from the facility would shut down a
public drinking water intake? 2
Yes
No
Does the facility have a total oil storage capacity great-
er than or equal to 1 million gallons and has the facility
experienced a reportable oil spill2 in an amount greater
than or equal to 10,000 gallons within the last 5 years?
Yes
No
CERTIFICATION
I certify under penalty of law that I have personally ex-
amined and am familiar with the information submitted in
this document, and that based on my inquiry of those in-
dividuals responsible for obtaining information, I believe
that the submitted information is true, accurate, and com-
plete.
Signature:
Name (Please type or print):
Title:
Date:
[59 FR 34122, July 1, 1994; 59 FR 49006, Sept. 26,
1994]
(see Appendix E to this part, section 10, for availability)
and the applicable ACP.
53
-------
PART 113—LIABILITY LIMITS FOR
SMALL ONSHORE STORAGE
FACILITIES
Subpart A—Oil Storage Facilities
Sec.
113.1 Purpose.
113.2 Applicability.
113.3 Definitions.
113.4 Size classes and associated liability limits for
fixed onshore oil storage facilities, 1,000 barrels or
less capacity.
113.5 Exclusions.
113.6 Effect on other laws.
AUTHORITY: Sec. 311(fi(2), 86 Stat. 867 (33 U.S.C.
1251 (1972)).
SOURCE: 38 FR 25440, Sept. 13, 1973, unless other-
wise noted.
Subpart A—Oil Storage Facilities
§113.1 Purpose.
This subpart establishes size classifications and
associated liability limits for small onshore oil
storage facilities with fixed capacity of 1,000 bar-
rels or less.
§113.2 Applicability.
This subpart applies to all onshore oil storage
facilities with fixed capacity of 1,000 barrels or
less. When a discharge to the waters of the United
States occurs from such facilities and when re-
moval of said discharge is performed by the Unit-
ed States Government pursuant to the provisions
of subsection 311(c)(l) of the Act, the liability of
the owner or operator and the facility will be lim-
ited to the amounts specified in § 113.4.
§113.3 Definitions.
As used in this subpart, the following terms
shall have the meanings indicated below:
(a) Aboveground storage facility means a tank
or other container, the bottom of which is on a
plane not more than 6 inches below the surround-
ing surface.
(b) Act means the Federal Water Pollution Con-
trol Act, as amended, 33 U.S.C. 1151, et seq.
(c) Barrel means 42 United States gallons at 60
degrees Fahrenheit.
(d) Belowground storage facility means a tank
or other container located other than as defined as
"Aboveground".
(e) Discharge includes, but is not limited to any
spilling, leaking, pumping, pouring, emitting,
emptying or dumping.
(f) Onshore Oil Storage Facility means any fa-
cility (excluding motor vehicles and rolling stock)
of any kind located in, on, or under, any land
within the United States, other than submerged
land.
(g) On-Scene Coordinator is the single Federal
representative designated pursuant to the National
Oil and Hazardous Substances Pollution Contin-
gency Plan and identified in approved Regional
Oil and Hazardous Substances Pollution Contin-
gency Plans.
(h) Oil means oil of any kind or in any form,
including but no limited to, petroleum, fuel oil,
sludge, oil refuse, and oil mixed with wastes other
than dredged spoil.
(i) Remove or removal means the removal of the
oil from the water and shorelines or the taking of
such other actions as the Federal On-Scene Coor-
dinator may determine to be necessary to mini-
mize or mitigate damage to the public health or
welfare, including but not limited to, fish, shell-
fish, wildlife, and public and private property,
shorelines, and beaches.
Additionally, the terms not otherwise defined here-
in shall have the meanings assigned them by sec-
tion 311(a) of the Act.
§113.4 Size classes and associated li-
ability limits for fixed onshore oil
storage facilities, 1,000 barrels or
less capacity.
Unless the United States can show that oil was
discharged as a result of willful negligence or
willful misconduct within the privity and knowl-
edge of the owner or operator, the following limits
of liability are established for fixed onshore facili-
ties in the classes specified:
(a) Aboveground storage.
Size class
1
II
Ill
IV
Capacity (bar-
rels)
Up to 10
11 to 170
171 to 500 ....
501 to 1 .000
Limit
(dollars)
4,000
60,000
150,000
200.000
(b) Belowground storage.
Size class
I
II
Ill
IV
Capacity (bar-
rels)
Up to 10
11 to 170
171 to 500 ....
501 to 1 ,000
Limit
(dollars)
5,200
78,000
195,000
260,000
§113.5 Exclusions.
This subpart does not apply to:
(a) Those facilities whose average daily oil
throughout is more than their fixed oil storage ca-
pacity.
(b) Vehicles and rolling stock.
-------
§113.6
§113.6 Effect on other laws. the Act, nor shall the liability of any facility for
,T any charges or damages under State or local law
Nothing herein shall be construed to limit the h- , .? ,• , .,.. T ^, ^11^,
.,. ° .,. reduce its liability to the Federal Government
ability of any facility under State or local law or under section 3U of ^ ffi ^^^ b ^
under any Federal law other than section 311 of h rt
-------
PART 116—DESIGNATION OF
HAZARDOUS SUBSTANCES
Sec.
116.1 Applicability.
116.2 Abbreviations.
116.3 Definitions.
116.4 Designation of hazardous substances.
AUTHORITY: Sees. 311(b)(2)(A) and 501 (a), Federal
Water Pollution Control Act (33 U.S.C. 1251 et seq.).
§116.1 Applicability.
This regulation designates hazardous substances
under section 311(b)(2)(A) of the Federal Water
Pollution Control Act (the Act). The regulation ap-
plies to discharges of substances designated in
Table 116.4.
[43 FR 10474, Mar. 13, 1978]
§ 116.2 Abbreviations.
ppm=parts per million
mg=milligram(s)
kg=kilogram(s)
mg/l=milligrams(s) per liter= (approx.) ppm
mg/kg=milligram(s) per kilogram= (approx.) ppm
[43 FR 10474, Mar. 13, 1978]
§116.3 Definitions.
As used in this part, all terms shall have the
meaning defined in the Act and as given below:
The Act means the Federal Water Pollution
Control Act, as amended by the Federal Water
Pollution Control Act Amendments of 1972 (Pub.
L. 92-500), and as further amended by the Clean
Water Act of 1977 (Pub. L. 95-217), 33 U.S.C.
1251 et seq.; and as further amended by the Clean
Water Act Amendments of 1978 (Pub. L. 95-676);
Animals means appropriately sensitive animals
which carry out respiration by means of a lung
structure permitting gaseous exchange between air
and the circulatory system;
Aquatic animals means appropriately sensitive
wholly aquatic animals which carry out respiration
by means of a gill structure permitting gaseous ex-
change between the water and the circulatory sys-
tem;
Aquatic flora means plant life associated with
the aquatic eco-system including, but not limited
to, algae and higher plants;
Contiguous zone means the entire zone estab-
lished or to be established by the United States
under article 24 of the Convention of the Terri-
torial Sea and the Contiguous Zone;
Discharge includes, but is not limited to, any
spilling, leaking, pumping, pouring, emitting,
emptying or dumping, but excludes (A) discharges
in compliance with a permit under section 402 of
this Act, (B) discharges resulting from cir-
cumstances identified and reviewed and made a
part of the public record with respect to a permit
issued or modified under section 402 of this Act,
and subject to a condition in such permit, and (C)
continuous or anticipated intermittent discharges
from a point source, identified in a permit or per-
mit application under section 402 of this Act,
which are caused by events occurring within the
scope of relevant operating or treatment systems;
LC50 means that concentration of material
which is lethal to one-half of the test population
of aquatic animals upon continuous exposure for
96 hours or less.
Mixture means any combination of two or more
elements and/or compounds in solid, liquid, or
gaseous form except where such substances have
undergone a chemical reaction so as to become in-
separable by physical means.
Navigable waters is defined in section 502(7) of
the Act to mean "waters of the United States, in-
cluding the territorial seas," and includes, but is
not limited to:
(1) All waters which are presently used, or were
used in the past, or may be susceptible to use as
a means to transport interstate or foreign com-
merce, including all waters which are subject to
the ebb and flow of the tide, and including adja-
cent wetlands; the term wetlands as used in this
regulation shall include those areas that are inun-
dated or saturated by surface or ground water at
a frequency and duration sufficient to support, and
that under normal circumstances do support, a
prevelance of vegetation typically adapted for life
in saturated soil conditions. Wetlands generally in-
clude swamps, marshes, bogs and similar areas;
the term adjacent means bordering, contiguous or
neighboring;
(2) Tributaries of navigable waters of the United
States, including adjacent wetlands;
(3) Interstate waters, including wetlands; and
(4) All other waters of the United States such
as intrastate lakes, rivers, streams, mudflats,
sandflats and wetlands, the use, degradation or de-
struction of which affect interstate commerce in-
cluding, but not limited to:
(i) Intrastate lakes, rivers, streams, and wetlands
which are utilized by interstate travelers for rec-
reational or other purposes; and
(ii) Intrastate lakes, rivers, streams, and wet-
lands from which fish or shellfish are or could be
taken and sold in interstate commerce; and
(iii) Intrastate lakes, rivers, streams, and wet-
lands which are utilized for industrial purposes by
industries in interstate commerce.
Navigable waters do not include prior converted
cropland. Notwithstanding the determination of an
area's status as prior converted cropland by any
other federal agency, for the purposes of the Clean
-------
§116.4
Water Act, the final authority regarding Clean
Water Act jurisdiction remains with EPA.
Offshore facility means any facility of any kind
located in, on, or under, any of the navigable wa-
ters of the United States, and any facility of any
kind which is subject to the jurisdiction of the
United States and is located in, on, or under any
other waters, other than a vessel or a public ves-
sel;
Onshore facility means any facility (including,
but not limited to, motor vehicles and rolling
stock) of any kind located in, on, or under, any
land within the United States other than sub-
merged land;
Otherwise subject to the jurisdiction of the Unit-
ed States means subject to the jurisdiction of the
United States by virtue of United States citizen-
ship, United States vessel documentation or num-
bering, or as provided for by international agree-
ment to which the United States is a party.
A discharge in connection with activities under
the Outer Continental Shelf Lands Act or the
Deepwater Port Act of 1974, or which may affect
natural resources belonging to, appertaining to, or
under the exclusive management authority of the
United States (including resources under the Fish-
ery Conservation and Management Act of 1976),
means: (1) A discharge into any waters beyond the
contiguous zone from any vessel or onshore or
offshore facility, which vessel or facility is subject
to or is engaged in activities under the Outer Con-
tinental Shelf Lands Act or the Deepwater Port
Act of 1974, and (2) any discharge into any waters
beyond the contiguous zone which contain, cover,
or support any natural resource belonging to, ap-
pertaining to, or under the exclusive management
authority of the United States (including resources
under the Fishery Conservation and Management
Act of 1976).
Public vessel means a vessel owned or
bareboat-chartered and operated by the United
States, or a State or political subdivision thereof,
or by a foreign nation, except when such vessel is
engaged in commerce.
Territorial seas means the belt of the seas
measured from the line of ordinary low water
along that portion of the coast which is in direct
contact with the open sea and the line marking the
seaward limit of inland waters, and extending sea-
ward a distance of 3 miles.
Vessel means every description of watercraft or
other artificial contrivance used, or capable of
being used, as a means of transportation on water
other than a public vessel;
[43 FR 10474, Mar. 13, 1978; 43 FR 27533, June 26,
1978, as amended at 44 FR 10266, Feb. 16, 1979; 58 FR
45039, Aug. 25, 1993]
§116.4 Designation of hazardous sub-
stances.
The elements and compounds appearing in Ta-
bles 116.4 A and B are designated as hazardous
substances in accordance with section
311(b)(2)(A) of the Act. This designation includes
any isomers and hydrates, as well as any solutions
and mixtures containing these substances. Syno-
nyms and Chemical Abstract System (CAS) num-
bers have been added for convenience of the user
only. In case of any disparity the common names
shall be considered the designated substance.
TABLE 116.4A—LIST OF HAZARDOUS SUBSTANCES
Common name
Acetaldehyde
Acetic acid
Acetyl bromide
Adipic acid
Aldrin
Ammonium benzoate
Ammonium bisulfite
CAS No.
75070
64197
1 08247
75865
506967
79367
1 07028
107131
124049
309002
107186
107051
10043013
7664417
631618
1863634
1066337
7789095
1341497
1 01 92300
Synonyms
Ethanal, ethyl aldehyde, acetic aldehyde
Glacial acetic acid, vinegar acid
hydroxyisobutyronitrile.
acraldehyde.
propeneitrile, vinyl cyanide.
Hexanedioic acid
Octalene, HHDN
Chlorallylene.
gen carbonate.
fluoride.
Isomers
CAS No.
-------
§116.4
TABLE 116.4A—LIST OF HAZARDOUS SUBSTANCES—Continued
Common name
Ammonium carbonate
Ammonium citrate dibasic
Ammonium hydroxide
Ammonium sulfamate
Ammonium thiocyanate
Amly acetate
Antimony pentachloride
Antimony trichloride
Antimony trioxide
Arsenic trichloride
Arsenic trioxide
Barium cyanide
Benzene
Benzoyl chloride
Beryllium fluoride
Butyric acid
Cadmium bromide
Calcium arsenate
Calcium arsenite
Calcium chromate
Calcium cyanide
Calcium dodecvlbenzenesulfonate .
CAS No.
1111 780
506876
1 21 25029
7788989
3012655
1 3826830
12125018
1336216
6009707
5972736
14258492
16919190
7773060
12135761
1 01 96040
10192300
31 64292
14307438
1762954
628637
62533
7647189
28300745
778961 9
10025919
7783564
1309644
1303328
1303282
7784341
1327533
1303339
542621
71432
65850
1 00470
98884
100447
7787475
7787497
7787555
13597994
1 23864
1 09739
84742
107926
543908
7789426
1 01 08642
7778441
52740166
75207
13765190
592018
26264062
Synonyms
Amchlor.
Diammonium citrate, citric acid diammonium
salt.
borofluoride.
Ammate, AMS, ammonium amidosulfate
Ammonium rhodanide, ammonium
sulfocyanate, ammonium sulfocyanide.
Amy lacetic ester
Pear oil
Banana oil
aminophen, kyanol.
antimony, potassium antimonyltartrate.
Butter of antimony
Diantimony trioxide, flowers of antimony
Arsenic chloride, arsenious chloride, arsenous
chloride, butter of arsenic.
Arsenious acid, arsenious oxide, white arsenic
Cyclohexatriene, benzol
dracylic acid.
Benzenecarbonyl chloride
dibutyl phthalate.
Butanoic acid, ethylacetic acid
Tricalcium orthoarsenate
Calcium chrome yellow, geblin, yellow ultra-
marine.
Isomers
iso-
tert-
sec-
tert-
sec-
tert-
iso-
CAS No.
123922
626380
625161
110190
105464
540885
78819
513495
1 3952846
75649
79312
-------
§116.4
TABLE 116.4A—LIST OF HAZARDOUS SUBSTANCES—Continued
Common name
Captan
Carbof u ran
Carbon disulfide
Chlordane
Chloroform
Chlorosulfonic acid
Chromic acetate
Chromic sulfate
Coabaltous formate
Coumaphos
Cresol
Cupric acetoarsenite
Cupric chloride
Cupric oxalate
Cupric sulfate
Cupric tartrate
Cyclohexane
2 4-D acid
2,4-D ester
DDT
Dicamba
Dichlone
Dichloropropane
(mixture).
2,2-Dichloropropionic acid
Dicofol
Dieldrin
Diethylamine
Dinitrobenzene (mixed)
Dinitroohenol
CAS No.
7778543
133062
63252
1563662
75150
56235
57749
75003
1 08907
67663
2921 882
7790945
1066304
1111 5745
10101538
1 0049055
7789437
544183
14017415
56724
1319773
41 70303
142712
12002038
7447394
3251 238
5893663
7758987
1 0380297
815827
506774
110827
94757
94111
94791
94804
1320189
1928387
1928616
1929733
2971382
25168267
534671 1 1
50293
333415
1918009
1 1 94656
117806
25321 226
26638197
26952238
80031 98
75990
62737
115322
60571
109897
1 24403
25154545
51285
Synonyms
Orthocide-406, SR-406, Vancide-89
Furadan
Carbon bisulfide, dithiocarbonic anhydride
Toxichlor, chlordan
Trichloromethane
Sulfuric chlorohydrin
Cobalt formate
Co-Ral
Cresylicacid
Copper acetoarsenite, copper acetate arsenite,
Paris green.
Copper chloride
Copper oxalate
Copper sulfate
Copper tartrate
Hexahydrobenzene, hexamethylene,
hexanaphthene.
2,4-dichlorophenoxyacetic acid ester
p p'-DDT
2-methoxy-3,6-dichlorobenzoic acid
2 6-dichlorobenzonitrile 2 6-DBN
Phygon, dichloronaphthoquinone
Paramoth (Para)
Propylene dichloride
Dalapon
Di(p-chlorophenyl)-trichloromethylcarbinol,
DTMC, dicofol.
Alvit
Dinitrobenzol
Aldifen
Isomers
m-
P-
Ortho
Para
1,1
1 2
1,3
1 3
2,3
m-
P-
(2.5-1
CAS No.
108394
95487
106445
95501
106467
78999
78875
142289
542756
78886
99650
528290
100254
329715
-------
§116.4
TABLE 116.4A—LIST OF HAZARDOUS SUBSTANCES—Continued
Common name
Dodecylbenzenesulfonic acid
Endrin
Epichlorohydrin
Ethyl benzene
(EOT A).
Ferric ammonium citrate
Ferric chloride
Ferric nitrate
Ferric sulfate
Ferrous ammonium sulfate
Ferrous chloride
Formic acid
Guthion
Hexachlorocyclopentadiene
Hydrochloric acid
Hydrogen cyanide
Isoprene
dodecylbenzenesulfonate.
Kepone
Lead arsenate
Lead chloride
Lead fluoride
Lead stearate
Lead sulfide
Lead thiocyanate
Lithium chromate
Maleic acid
CAS No.
25321 1 46
85007
2764729
298044
330541
27176870
1 1 5297
72208
106898
563122
100414
107153
60004
1 06934
1 07062
1185575
2944674
55488874
7705080
7783508
10421484
10028225
10045893
7758943
7720787
7782630
50000
64186
110178
98011
86500
76448
77474
7647010
7664393
74908
7783064
78795
42504461
143500
301042
7784409
7645252
1 01 02484
7758954
13814965
7783462
10101630
1 0099748
7428480
1072351
52652592
74461 42
1314870
592870
58899
14307358
121755
110167
Synonyms
DNT
Dextrone, Reglone, Diquat dibromide
DCMU DMU
Mendrin, Compound 269
-chloropropylene oxide
Phenylethane
tetraacetic acid.
dibromoethylene.
Ammonium ferric citrate
Flores martis, iron trichloride
Iron nitrate
Ferric persulfate, ferric sesquisulfate, ferric
tersulfate.
Mohr's salt, iron ammonium sulfate
Iron chloride, iron dichloride, iron protochloride
Iron vitriol, iron sulfate, iron protosulfate
Methanoic acid
ethylenedicarboxylic acid, boletic acid,
allomaleic acid.
Gusathion, azinphos-methyl
Perchlorocyclopentadiene
Hydrogen chloride, muriatic acid
Hyd rocyan ic acid
2-methyl-1,3-butadiene
Chlordecone 1,1a,3,3a,4,5,5,5a,5b,6-
decachlorooctahydro-1,3,4-metheno-2H-
cyclobuta(cd) pentalen-2-one.
Lead difluoride, plumbous fluoride
Stearic acid lead salt
Galena
Lead sulfocyanate
Cis-butenedioic acid, cis-1 ,2-
ethylenedicarboxylic acid, toxilic acid.
Isomers
(2,4-).
(2,6-)
24
2,6
3,4
CAS No.
573568
121142
606202
610399
-------
§116.4
TABLE 116.4A—LIST OF HAZARDOUS SUBSTANCES—Continued
Common name
Mercaptodimethur
Mercuric thiocyanate
Methoxychlor
Methyl mercaptan
Methyl methacrylate
Mevinphos
Mexacarbate
Monoethylamine
Naled
Naphthenic acid
Nickel hydroxide
Nickel nitrate
Nitrogen dioxide
Nitrophenol (mixed)
Paraformaldehyde
Parathion
Pentachlorophenol
Phenol
Phosphorus pentasulfide
Phosphorus trichloride
Potassium arsenite
Potassium chromate
Potassium cyanide
Potassium permanganate
Propylene oxide
Quinoline
Resorci nol
CAS No.
108316
203657
592041
1 0045940
7783359
592858
7782867
10415755
72435
74931
80626
298000
7786347
315184
75047
74895
300765
91203
1338245
15699180
3721 1 055
7718549
12054487
14216752
778681 4
7697372
98953
10102440
25154556
1321126
30525894
56382
87865
1 08952
75445
7664382
77231 40
1 0025873
1314803
7719122
1336363
778441 0
10124502
7778509
7789006
151508
1310583
7722647
231 2358
79094
123626
75569
121299
121211
91225
108463
Synonyms
toxilic anhydride.
Mesurol
Mercury thiocyanate, mercuric sulfocyanate,
mercuric sulfocyanide.
Mercury protonitrate
DMDT, methoxy-DDT
Methanethiol, mercaptomethane, methyl
sulfhydrate, thiomethyl alcohol.
Methacrylic acid methyl ester, methyl-2-methyl-
2-propenoate.
Nitrox-80
Phosdrin
Zectran
Ethylamine, aminoethane
Cyclohexanecarboxylic acid, hexahydrobenzoic
acid.
Nickelous hydroxide
Nitrogen tetraoxide
Mononitrophenol
Paraform, Formagene, Triformol, polymerized
formaldehyde, polyoxymethylene.
DNTP, Niran
PCP, Penta
hydroxybenzene, oxybenzene.
chloride.
phosphorus, yellow phosphorus.
Phosphoric sulfide, thiophosphoric anhydride,
phosphorus persulfide.
Phosphorous chloride
Potassium metaarsenite
Chameleon mineral
acid.
Propene oxide
Pyrethrin II
1-benzazine, benzo(b)pyridine, leuocoline,
chinoleine, leucol.
Resorcin, 1 ,3-benzenediol, meta-
dihydroxybenzene.
Isomers
m-
o-
Ortho
Meta
Para
CAS No.
554847
88755
100027
88722
99081
99990
-------
§116.4
TABLE 116.4A—LIST OF HAZARDOUS SUBSTANCES—Continued
Common name
Sodium
Sodium arsenate
Sodium arsenite
Sodium chromate
Sodium cyanide
Sodium dodecylbenzene-sulfonate
Sodium hypochlorite
Sodium methylate
Sodium phosphate, tribasic
Sodium selenite
2 4 5-T acid
2,4,5-T amines
2,4,5-T salts
TDE
2 4 5-TP acid
2,4,5-TP esters
Tetraethyl lead
Tetraethyl pyrophosphate
Trichlorophenol
Triethanolamine
dodecylbenzenesulfonate.
CAS No.
7446084
7761 888
7440235
7631892
7784465
1 058801 9
1333831
7631 905
7775113
143339
25155300
7681 494
16721805
1310732
7681529
10022705
124414
7632000
7558794
1 0039324
10140655
7785844
7601549
10101890
1 0361 894
7758294
10124568
10102188
7782823
7789062
57249
1 00425
7664939
12771083
93765
6369966
6369977
1319728
3813147
2545597
93798
61792072
1928478
25168154
13560991
72548
93721
32534955
78002
107493
10031591
7446186
1 08883
8001 352
52686
79016
25167822
27323417
Synonyms
Natrium
Disodium arsenate
Sodium metaarsenite
Bleach
Sodium methoxide
styrolene, cinnamene, cinnamol.
Acetic acid (2,4,5-trichlorophenoxy)-compound
with N,N-dimethylmethanamine (1:1).
with N-methylmethanamine (1:1).
with 1-amino-2-propanol (1:1).
with 2,22"-nitrilotris [ethanol] (1:1).
Acetic acid (2,4,5-trichlorophenoxy)-sodium
salt.
ODD
Propanoic acid, 2-(2,4,5-trichlorophenoxy)-,
isooctyl ester.
Lead tetraethyl, TEL
TEPP
Methacide.
Dylox
Collunosol, Dowicide 2 or 2S, Omal,
Phenachlor.
Isomers
(2,3,4-)
(2,3,5-)
(2,3,6-)
(2,4,5-)
(2,4,6-)
(3,4,5-)
CAS No.
15950660
933788
933755
95954
88062
609198
-------
§116.4
TABLE 116.4A—LIST OF HAZARDOUS SUBSTANCES—Continued
Common name
Triethylamine
Uranyl acetate
Vanadium pentoxide
Vinyl acetate
Zinc acetate
Zinc bromide
Zinc chloride
Zinc formate
Zinc nitrate
Zinc phosphide
Zinc silicofluoride
Zirconium nitrate
Zirconium sulfate
CAS No.
121448
75503
541093
10102064
36478769
1314621
2777 '41 36
108054
75354
1330207
1300716
557346
1 4639975
14639986
52628258
1332076
7699458
3486359
7646857
55721 1
7783495
557415
7779864
7779886
127822
1314847
16871719
7733020
13746899
1 6923958
14644612
1 00261 1 6
Synonyms
TMA
Vanadic anhydride, vanadic acid anhydride
Acetic acid ethylene ether
1,1-dichloroethene
Xylol
Butter of zinc
Zinc fluosilicate
Disulfatozirconic acid
Isomers
P-
CAS No.
108383
95476
106423
TABLE 116.4B—LIST OF HAZARDOUS
SUBSTANCES BY CAS NUMBER
TABLE 116.4B—LIST OF HAZARDOUS
SUBSTANCES BY CAS NUMBER—Continued
CAS No.
50000
50293
51285
52686
56382
56724
57249
57749
58899
60004
60571
62533
62737
63252
64186
64197
65850
67663
71432
72208
72435
72548
74895
74908
74931
75047
75070
75150
75207
Common name
Formaldehyde
DDT
Trichlorfon
Coumaphos
Strychnine
Lindane
acid (EOT A)
Dieldrin
Dichlorvos
Carbaryl
Acetic acid
Benzene
Methoxychlor
TDE
Monomethylamine
Hydrogen cyanide
Monoethylamine
Carbon disulfide
Calcium carbide
CAS No.
75445
75503
75649
75865
75990
76448
78002
78795
78819
79094
79312
79367
80626
85007
86500
87865
88755
91203
91225
93765
93798
94111
94757
94791
94804
95476
95487
98011
98884
98953
Common name
Phosgene
tert-Butylamine
Acetone cyanohydrin
Heptachlor
iso-Butylamine
iso-Butyric acid
Acetyl chloride
Diquat
o-Nitrophenol
2,4,5-T acid
2 4 5-T ester
2,4-D ester
2 4-D acid
2,4-D ester
2,4-D Butyl ester
o-Cresol
Benzoyl chloride
Nitrobenzene
-------
§116.4
TABLE 116.4B—LIST OF HAZARDOUS
SUBSTANCES BY CAS NUMBER—Continued
TABLE 116.4B—LIST OF HAZARDOUS
SUBSTANCES BY CAS NUMBER—Continued
CAS No.
99650
100027
100254
100414
100425
1 00447
1 00470
105464
1 06423
106445
107028
107051
107131
107153
107186
107493
1 07926
108054
108247
108316
108383
1 08394
1 08463
108883
1 08907
108952
109739
1 09897
110167
110178
110190
110827
1 1 5297
115322
117806
121211
121299
121448
121755
123626
1 23864
123922
124403
124414
127822
1 33062
142712
1 43339
151508
298000
298044
300765
301042
309002
315184
329715
330541
333415
506774
506876
506967
513495
528290
540885
541093
542621
543908
544183
554847
557211
557346
Common name
p-Nitrophenol
p-Dinitrobenzene
Styrene
sec-Butyl acetate
p-Cresol
Acrolein
Acrylonitrile
Tetraethyl pyrophosphate
Vinyl acetate
Acetic anhydride
m-Xylene
Toluene
Phenol
n-Butylamine
Maleic acid
Cyclohexane
Dicofol
Dichlone
Pyrethrin
Propionic anhydride
iso-Amyl acetate
Dimethylamine
Zinc phenolsulfonate
Potassium cyanide
Disulfoton
Naled
Lead acetate
Aldrin
2,5-Dinitrophenol
Diazinon
Acetyl bromide
o-Dinitrobenzene
Uranyl acetate
Barium cyanide
Cobaltous formate
Zinc cyanide
Zinc acetate
CAS No.
557415
563122
573568
592018
592041
592858
592870
625161
626380
628637
631618
815827
1066304
1 066337
1 072351
1111780
1185575
1194656
1300716
1 303282
1303328
1 303339
1 309644
1310583
1 31 0732
1314621
1314803
1 31 4847
1314870
1 31 9773
1 3201 89
1327533
1 330207
1332076
1333831
1336216
1336363
1 338245
1 341 497
1762954
1 863634
1918009
1928387
1 928478
1928616
1 929733
2545597
2764729
2921882
2944674
2971382
301 2655
3164292
3251238
3486359
5893663
5972736
6009707
6369966
7428480
7440235
7446084
7446142
7447394
7558794
7601549
7631 892
7631905
7632000
7645252
7646857
Common name
Ethion
2,6-Dinitrophenol
Mercuric cyanide
tert-Amyl acetate
n-Amyl acetate
Ammonium acetate
Chromic acetate
Ammonium carbamate
Ferric ammonium citrate
Dichlobenil
Xylenol
Arsenic disulfide
Potassium hydroxide
Vanadium pentoxide
Phosphorus pentasulfide
Lead sulfide
2 4-D ester
Arsenic trioxide
Xylene
Zinc borate
Sodium bifluoride
Polychlorinated biphenyls
Ammonium thiocyanate
Dicamba
2, 4-D esters
2 4 5-T ester
2,4-D ester
2 4-D ester
2 4 5-T ester
Chlorpyrifos
Ferric ammonium oxalate
2,4-D ester
Ammonium tartrate
Cupric nitrate
Cupric oxalate
Ammonium oxalate
2 4 5-T ester
Sodium
Lead sulfate
Sodium phosphate, dibasic
Sodium phosphate, tribasic
Sodium bisulfite
Lead arsenate
Zinc chloride
-------
§116.4
TABLE 116.4B—LIST OF HAZARDOUS
SUBSTANCES BY CAS NUMBER—Continued
TABLE 116.4B—LIST OF HAZARDOUS
SUBSTANCES BY CAS NUMBER—Continued
CAS No.
7647010
7647189
7664382
7664393
7664417
7664939
7681 494
7681529
7697372
7699458
7705080
771 8549
7719122
7720787
7722647
7723140
7733020
7758294
7758943
7758954
7758987
7773060
7775113
7778441
7778509
7778543
7779864
7779886
7782505
7782630
7782823
7782867
7783359
7783462
7783495
7783508
7783564
7784341
7784409
7784410
7784465
7785844
7786347
7786814
7787475
7787497
7787555
7788989
7789006
7789062
7789095
7789426
7789437
7789619
7790945
8001352
1 0022705
10025873
1 002591 9
10026116
10028225
1 0028247
10039324
1 004301 3
10045893
10045940
10049055
10099748
10101538
10101630
10101890
Common name
Antimony pentachloride
Phosphoric acid
Ammonia
Sodium hypochlorite
Zinc bromide
Ferric chloride
Phosphorus trichloride
Phosphorus
Sodium phosphate, tribasic
Ferrous chloride
Cupric sulfate
Calcium arsenate
Calcium hypochlorite
Zinc hydrosulfite
Chlorine
Mercurous nitrate
Lead fluoride
Zinc fluoride
Antimony trifluoride
Potassium arsenate
Sodium phosphate, tribasic
Mevinphos
Beryllium chloride
Potassium chromate
Ammonium bichromate
Cobaltous bromide
Antimony tribromide
Toxaphene
Phosphorus oxychloride
Zirconium tetrachloride
Ferric sulfate
Sodium phosphate, dibasic
Ferrous ammonium sulfate
Mercuric nitrate
Chromous chloride
Lead nitrate
Lead iodide
Sodium ohosohate. tribasic
CAS No.
10102064
10102188
10102440
10102484
10108642
10124502
10124568
10140655
10192300
10196040
10361894
10380297
10415755
10421484
10588019
11115745
12002038
12054487
12125018
12125029
12135761
12771083
13597994
13746899
13765190
13814965
13826830
13952846
14017415
14216752
14258492
14307358
14307438
14639975
14639986
14644612
15699180
16721805
16871719
16919190
16923958
25154545
25154556
25155300
25167822
25168154
25168267
26264062
27176870
2732341 7
27774136
28300745
30525894
36478769
37211055
42504461
52628258
52740166
53467111
55488874
61792072
Common name
Uranyl nitrate
Sodium selenite
Nitrogen dioxide
Lead arsenate
Cadmium chloride
Potassium arsenite
Sodium phosphate, tribasic
Sodium phosphate, dibasic
Ammonium bisulfite
Ammonium sulfite
Sodium phosphate, tribasic
Cupric sulfate, ammoniated
Mercurous nitrate
Ferric nitrate
Sodium bichromate
Chromic acid
Cupric acetoarsenite
Nickel hydroxide
Ammonium fluoride
Ammonium chloride
Ammonium sulfide
Sulfur chloride
Beryllium nitrate
Zirconium nitrate
Calcium chromate
Lead fluoborate
Ammonium fluoborate
sec-Butylamine
Cobaltous sulfamate
Nickel nitrate
Ammonium oxalate
Lithium chromate
Ammonium tartrate
Zinc ammonium chloride
Zinc ammonium chloride
Zirconium sulfate
Nickel ammonium sulfate
Sodium hydrosulfide
Zinc silicofluoride
Ammonium silicofluoride
Zirconium potassium fluoride
Dinitrobenzene
Nitrophenol
Sodium dodecylbenzenesulfonate
Trichlorophenol
2,4,5-T ester
2,4-D ester
Calcium dodecylbenzenesulfonate
Dodecylbenzenesulfonic acid
Triethanolamine
dodecylbenzenesulfonate
Vanadyl sulfate
Antimony potassium tartrate
Paraformaldehyde
Uranyl nitrate
Nickel chloride
Dodecylbenzenesulfonate
isopropanolamine
Zinc ammonium chloride
Calcium arsenite
2,4-D ester
Ferric ammonium oxalate
2.4.5-T ester
[43 FR 10474, Mar. 13, 1978; 43 FR 27533, June 26,
1978, as amended at 44 FR 10268, Feb. 16, 1979; 44 FR
65400, Nov. 13, 1979; 44 FR 66602, Nov. 20, 1979; 54
FR 33482, Aug. 14, 1989]
10
-------
PART 117—DETERMINATION OF RE-
PORTABLE QUANTITIES FOR HAZ-
ARDOUS SUBSTANCES
Sec.
117.1
117.2
117.3
Subpart A—General Provisions
Definitions.
Abbreviations.
Determination of reportable quantities.
Subpart B—Applicability
117.11 General applicability.
117.12 Applicability to discharges from facilities with
NPDES permits.
117.13 Applicability to discharges from publicly owned
treatment works and their users.
117.14 Demonstration projects.
Subpart C—Notice of Discharge of a
Reportable Quantity
117.21
117.23
Notice.
Liabilities for removal.
AUTHORITY: Sees. 311 and 501 (a), Federal Water Pol-
lution Control Act (33 U.S.C. 1251 et seq.), ("the Act")
and Executive Order 11735, superseded by Executive
Order 12777, 56 FR 54757.
SOURCE: 44 FR 50776, Aug. 29, 1979, unless otherwise
noted.
Subpart A—General Provisions
§117.1 Definitions.
As used in this part, all terms shall have the
meanings stated in 40 CFR part 116.
(a) Reportable quantities means quantities that
may be harmful as set forth in §117.3, the dis-
charge of which is a violation of section 311(b)(3)
and requires notice as set forth in § 117.21.
(b) Administrator means the Administrator of
the Environmental Protection Agency ("EPA").
(c) Mobile source means any vehicle, rolling
stock, or other means of transportation which con-
tains or carries a reportable quantity of a hazard-
ous substance.
(d) Public record means the NPDES permit ap-
plication or the NPDES permit itself and the
"record for final permit" as defined in 40 CFR
124.122.
(e) National Pretreatment Standard or
Pretreatment Standard means any regulation con-
taining pollutant discharge limits promulgated by
the EPA in accordance with section 307 (b) and
(c) of the Act, which applies to industrial users of
a publicly owned treatment works. It further
means any State or local pretreatment requirement
applicable to a discharge and which is incor-
porated into a permit issued to a publicly owned
treatment works under section 402 of the Act.
(f) Publicly Owned Treatment Works or POTW
means a treatment works as defined by section
212 of the Act, which is owned by a State or mu-
nicipality (as defined by section 502(4) of the
Act). This definition includes any sewers that con-
vey wastewater to such a treatment works, but
does not include pipes, sewers or other convey-
ances not connected to a facility providing treat-
ment. The term also means the municipality as de-
fined in section 502(4) of the Act, which has juris-
diction over the indirect discharges to and the dis-
charges from such a treatment works.
(g) Remove or removal refers to removal of the
oil or hazardous substances from the water and
shoreline or the taking of such other actions as
may be necessary to minimize or mitigate damage
to the public health or welfare, including, but not
limited to, fish, shellfish, wildlife, and public and
private property, shorelines, and beaches.
(h) Contiguous zone means the entire zone es-
tablished by the United States under Article 24 of
the Convention on the Territorial Sea and Contig-
uous Zone.
(i) Navigable waters means "waters of the
United States, including the territorial seas." This
term includes:
(1) All waters which are currently used, were
used in the past, or may be susceptible to use in
interstate or foreign commerce, including all wa-
ters which are subject to the ebb and flow of the
tide;
(2) Interstate waters, including interstate wet-
lands;
(3) All other waters such as intrastate lakes, riv-
ers, streams, (including intermittent streams),
mudflats, sandflats, and wetlands, the use, deg-
radation or destruction of which would affect or
could affect interstate or foreign commerce includ-
ing any such waters:
(i) Which are or could be used by interstate or
foreign travelers for recreational or other purposes;
(ii) From which fish or shellfish are or could be
taken and sold in interstate or foreign commerce;
(iii) Which are used or could be used for indus-
trial purposes by industries in interstate commerce;
(4) All impoundments of waters otherwise de-
fined as navigable waters under this paragraph;
(5) Tributaries of waters identified in paragraphs
(i) (1) through (4) of this section, including adja-
cent wetlands; and
(6) Wetlands adjacent to waters identified in
paragraphs (i) (1) through (5) of this section
("Wetlands" means those areas that are inundated
or saturated by surface or ground water at a fre-
quency and duration sufficient to support, and that
under normal circumstances do support, a preva-
lence of vegetation typically adapted for life in
saturated soil conditions. Wetlands generally in-
cluded playa lakes, swamps, marshes, bogs, and
1
-------
§117.2
similar areas such as sloughs, prairie potholes, wet
meadows, prairie river overflows, mudflats, and
natural ponds): Provided, That waste treatment
systems (other than cooling ponds meeting the cri-
teria of this paragraph) are not waters of the Unit-
ed States.
Navigable waters do not include prior converted
cropland. Notwithstanding the determination of an
area's status as prior converted cropland by any
other federal agency, for the purposes of the Clean
Water Act, the final authority regarding Clean
Water Act jurisdiction remains with EPA.
(j) Process waste water means any water which,
during manufacturing or processing, comes into di-
rect contact with or results from the production or
use of any raw material, intermediate product, fin-
ished product, byproduct, or waste product.
[44 FR 50776, Aug. 29, 1979, as amended at 58 FR
45039, Aug. 25, 1993]
§ 117.2 Abbreviations.
NPDES equals National Pollutant Discharge
Elimination System. RQ equals reportable quan-
tity.
§117.3 Determination of reportable
quantities.
Each substance in Table 117.3 that is listed in
Table 302.4, 40 CFR part 302, is assigned the re-
portable quantity listed in Table 302.4 for that
substance.
TABLE 117.3—REPORTABLE QUANTITIES OF HAZ-
ARDOUS SUBSTANCES DESIGNATED PURSUANT
TO SECTION 311 OF THE CLEAN WATER ACT
NOTE: The first number under the column headed
"RQ" is the reportable quantity in pounds. The number
in parentheses is the metric equivalent in kilograms. For
convenience, the table contains a column headed "Cat-
egory" which lists the code letters "X", "A", "B",
"C", and "D" associated with reportable quantities of 1,
10, 100, 1000, and 5000 pounds, respectively.
TABLE 117.3—REPORTABLE QUANTITIES OF HAZARDOUS SUBSTANCES DESIGNATED PURSUANT TO
SECTION 311 OF THE CLEAN WATER ACT
Material
Acetaldehyde
Acetic acid
Acetic anhydride
Acrolein
Acrylonitrile
Adipic acid
Aldrin
Aluminum sulfate
Ammonia
Ammonium benzoate
Ammonium bifluoride
Ammonium carbamate
Ammonium carbonate
Ammonium chromate
Ammonium fluoride
Ammonium oxalate
Ammonium silicofluoride
Ammonium sulfide
Ammonium thiocyanate
Aniline
Antimony pentachloride
Antimony tribromide
Antimonv trifluoride
Category
C
D
D
A
D
D
X
B
D
X
B
C
D
B
D
D
D
A
B
D
D
D
D
A
D
D
B
C
D
C
D
B
D
D
D
D
D
C
B
C
C
C
RQ in pounds (kilograms)
1,000(454)
5,000 (2,270)
5,000 (2,270)
1 0 (4 54)
5 000 (2 270)
5 000 (2 270)
1 (0.454)
100(45.4)
5,000 (2,270)
1 (0 454)
1 00 (45 4)
1 000 (454)
5,000 (2,270)
100(45.4)
5 000 (2 270)
5,000 (2,270)
5 000 (2 270)
1 0 (4 54)
100(45.4)
5 000 (2 270)
5,000 (2,270)
5,000 (2,270)
5 000 (2 270)
10(4.54)
5 000 (2 270)
5 000 (2 270)
100(45.4)
1 000 (454)
5,000 (2,270)
1,000(454)
5 000 (2 270)
100(45.4)
5 000 (2 270)
5 000 (2 270)
5,000 (2,270)
5 000 (2 270)
5,000 (2,270)
1,000(454)
1 00 (45 4)
1,000 (454)
1 000 (454)
1.000 (454)
-------
§117.3
TABLE 117.3—REPORTABLE QUANTITIES OF HAZARDOUS SUBSTANCES DESIGNATED PURSUANT TO
SECTION 311 OF THE CLEAN WATER ACT—Continued
Material
Arsenic disulfide
Arsenic pentoxide
Arsenic trioxide
Benzene
Benzonitrile
Benzoyl chloride
Beryllium chloride
Butyl acetate
n-Butyl phthalate
Butyric acid
Cadmium bromide
Calcium arsenite
Calcium chromate
Calcium cyanide
Calcium hypochlorite
Carbofuran
Carbon tetrachloride
Chlordane
Chlorobenzene
Chlorpyrifos
Chromic acid
Chromic sulfate
Cobaltous bromide
Cresol
Cupric acetate
Cupric chloride
Cupric nitrate
Cupric sulfate
Cupric tartrate
2,4-D Acid
2 4-D Esters
DDT
Dicamba
Dichlobenil
Dichlorobenzene
Dichloropropene
DichloroDroDene-DichloroDrooane (mixture!
Category
C
X
X
X
X
X
A
A
D
D
C
B
X
X
X
D
C
A
D
A
A
A
X
X
A
A
A
C
A
A
B
A
B
A
X
A
B
A
C
X
C
A
C
C
C
C
C
A
B
B
B
X
A
B
B
A
B
B
A
C
B
B
X
X
C
B
X
B
C
B
B
RQ in pounds (kilograms)
1 000 (454)
1 (0.454)
1 (0.454)
1 (0 454)
1 (0.454)
1 (0 454)
1 0 (4 54)
10(4.54)
5 000 (2 270)
5,000 (2,270)
1,000 (454)
1 00 (45 4)
1 (0.454)
1 (0 454)
1 (0 454)
5,000 (2,270)
1 000 (454)
10(4.54)
5,000 (2,270)
1 0 (4 54)
10(4.54)
1 0 (4 54)
1 (0 454)
1 (0.454)
1 0 (4 54)
10(4.54)
10(4.54)
1 000 (454)
10(4.54)
1 0 (4 54)
1 00 (45 4)
10(4.54)
1 00 (45 4)
10(4.54)
1 (0.454)
1 0 (4 54)
100(45.4)
1 0 (4 54)
1 000 (454)
1 (0.454)
1 000 (454)
10(4.54)
1,000(454)
1 000 (454)
1,000(454)
1 000 (454)
1 000 (454)
1 0 (4 54)
100(45.4)
1 00 (45 4)
100(45.4)
1 (0 454)
10(4.54)
100(45.4)
1 00 (45 4)
10(4.54)
1 00 (45 4)
100(45.4)
1 0 (4 54)
1 000 (454)
100(45.4)
1 00 (45 4)
1 (0.454)
1 (0 454)
1,000(454)
100(45.4)
1 (0 454)
100(45.4)
1 000 (454)
100(45.4)
100 (45.4)
-------
§117.3
TABLE 117.3—REPORTABLE QUANTITIES OF HAZARDOUS SUBSTANCES DESIGNATED PURSUANT TO
SECTION 311 OF THE CLEAN WATER ACT—Continued
Material
Dichlorvos
Dicofol
Diethylamine
Dinitrophenol
Diquat
Disulfoton
Dodecylbenzenesulfonic acid
Epichlorohydrin
Ethylbenzene
Ethylenediamine
Ethylene dibromide
Ferric ammonium oxalate
Ferric fluoride
Ferric nitrate
Ferrous ammonium sulfate
Formaldehyde
Fumaric acid
Furfural
Heptachlor
Hydrofluoric acid
Hydrogen sulfide
Isoprene
Kepone
Lead fluoborate
Lead iodide
Lead stearate
Lead sulfate
Lead thiocyanate
Lithium chromate
Maleic anhydride
Mercuric cyanide
Mercuric sulfate
Mercuric thiocyanate
Methoxychlor
Methyl methacrylate
Methvl oarathion
Category
D
A
A
X
B
c
B
A
A
C
X
B
C
X
X
B
A
C
D
D
X
B
C
C
C
B
C
C
C
B
C
B
D
D
D
X
X
A
D
B
A
B
B
C
X
A
X
A
A
A
A
A
A
A
A
A
X
A
B
D
D
A
X
A
A
A
A
X
B
C
B
RQ in pounds (kilograms)
5 000 (2 270)
10(4.54)
10(4.54)
1 (0 454)
100(45.4)
1 000 (454)
1 00 (45 4)
10(45.4)
1 0 (4 54)
1,000 (454)
1 (0.454)
1 00 (45 4)
1,000 (454)
1 (0 454)
1 (0 454)
100(45.4)
1 0 (4 54)
1,000(454)
5,000 (2,270)
5 000 (2 270)
1 (0.454)
1 00 (45 4)
1 000 (454)
1,000 (454)
1 000 (454)
100(45.4)
1,000(454)
1 000 (454)
1,000(454)
1 00 (45 4)
1 000 (454)
100(45.4)
5 000 (2 270)
5,000 (2,270)
5,000 (2,270)
1 (0 454)
1 (0.454)
1 0 (4 54)
5 000 (2 270)
100(45.4)
1 0 (4 54)
100(45.4)
100(45.4)
1 000 (454)
1 (0.454)
1 0 (4 54)
1 (0 454)
1 0 (4 54)
10(4.54)
1 0 (4 54)
10(4.54)
1 0 (4 54)
10(4.54)
10(4.54)
1 0 (4 54)
10(4.54)
1 (0 454)
10(4.54)
1 00 (45 4)
5 000 (2 270)
5,000 (2,270)
1 0 (4 54)
1 (0.454)
1 0 (4 54)
10(4.54)
10(4.54)
1 0 (4 54)
1 (0.454)
1 00 (45 4)
1,000 (454)
100 (45.4)
-------
§117.3
TABLE 117.3—REPORTABLE QUANTITIES OF HAZARDOUS SUBSTANCES DESIGNATED PURSUANT TO
SECTION 311 OF THE CLEAN WATER ACT—Continued
Material
Mexacarbate
Monoethylamine
Naled
Nickel ammonium sulfate
Nickel hydroxide
Nickel nitrate
Nitric acid
Nitrophenol (mixed)
Paraformaldehyde
Parathion
Phenol
Phosphorus
Phosphorus pentasulfide
Phosphorus trichloride
Potassium arsenate
Potassium chromate
Potassium hydroxide
Potassium permanganate
Propionic acid
Pyrethrins
Resorcinol
Selenium oxide
Sodium
Sodium bifluoride
Sodium chromate
Sodium dodecylbenzenesulfonate
Sodium fluoride
Sodium hydroxide
Sodium methylate
Sodium phosphate, tribasic
Strontium chromate
Styrene
Sulfuric acid
2,4,5-Tacid
2,4,5-T esters
2.4.5-T salts
Category
A
C
B
B
A
B
B
B
B
A
B
B
C
C
A
B
C
C
A
A
C
A
D
X
C
B
C
X
X
X
A
A
A
C
B
A
D
D
B
X
D
D
A
X
A
X
X
A
B
D
A
A
C
C
D
C
B
C
B
D
D
B
A
A
C
C
C
C
D
C
C
RQ in pounds (kilograms)
1 0 (4 54)
1,000 (454)
100(45.4)
1 00 (45 4)
10(4.54)
1 00 (45 4)
1 00 (45 4)
100(45.4)
1 00 (45 4)
10(4.54)
100(45.4)
1 00 (45 4)
1,000 (454)
1 000 (454)
1 0 (4 54)
100(45.4)
1 000 (454)
1,000 (454)
10(4.54)
1 0 (4 54)
1,000 (454)
1 0 (4 54)
5 000 (2 270)
1 (0.454)
1 000 (454)
100(45.4)
1,000 (454)
1 (0 454)
1 (0.454)
1 (0 454)
1 0 (4 54)
10(4.54)
1 0 (4 54)
1,000 (454)
100(45.4)
1 0 (4 54)
5,000 (2,270)
5 000 (2 270)
1 00 (45 4)
1 (0.454)
5 000 (2 270)
5,000 (2,270)
10(4.54)
1 (0 454)
10(4.54)
1 (0 454)
1 (0 454)
1 0 (4 54)
100(45.4)
5 000 (2 270)
10(4.54)
1 0 (4 54)
1,000(454)
1,000 (454)
5 000 (2 270)
1,000 (454)
1 00 (45 4)
1,000 (454)
1 00 (45 4)
5 000 (2 270)
5,000 (2,270)
1 00 (45 4)
10(4.54)
1 0 (4 54)
1,000 (454)
1,000(454)
1 000 (454)
1,000 (454)
5 000 (2 270)
1,000(454)
1.000 (454)
-------
§117.11
TABLE 117.3—REPORTABLE QUANTITIES OF HAZARDOUS SUBSTANCES DESIGNATED PURSUANT TO
SECTION 311 OF THE CLEAN WATER ACT—Continued
Material
TDE
2,4,5-TPacid
2,4,5-TP acid esters
Tetraethyl pyrophosphate
Toluene
Trichloroethylene
Triethanolamine dodecylbenzenesulfonate
Trimethylamine
Uranyl acetate
Vanadium pentoxide
Vinyl acetate
Xylenol
Zinc ammonium chloride
Zinc bromide
Zinc carbonate
Zinc cyanide
Zinc formate
Zinc phenolsulfonate
Zinc silicofluoride
Zirconium nitrate
Zirconium potassium fluoride
Zirconium tetrachloride
Category
X
B
B
A
A
B
C
X
B
B
A
C
D
B
B
B
C
C
D
B
B
C
C
C
C
C
C
C
A
C
C
C
C
D
B
D
C
D
C
D
D
RQ in pounds (kilograms)
1 (0 454)
100(45.4)
100(45.4)
1 0 (4 54)
10(4.54)
1 00 (45 4)
1,000 (454)
1 (0 454)
1 00 (45 4)
100(45.4)
1 0 (4 54)
1,000 (454)
5 000 (2 270)
100(45.4)
100(45.4)
1 00 (45 4)
1,000 (454)
1 000 (454)
5,000 (2,270)
1 00 (45 4)
1 00 (45 4)
1,000(454)
1 000 (454)
1,000 (454)
1 000 (454)
1,000 (454)
1,000 (454)
1 000 (454)
10(4.54)
1 000 (454)
1,000 (454)
1 000 (454)
1 000 (454)
5,000 (2,270)
1 00 (45 4)
5,000 (2,270)
1 000 (454)
5,000 (2,270)
1,000 (454)
5 000 (2 270)
5,000 (2,270)
[50 FR 13513, Apr. 4, 1985, as amended at 51 FR 34547, Sept. 29, 1986; 54 FR 33482, Aug. 14, 1989; 58 FR 35327,
June 30, 1993; 60 FR 30937, June 12, 1995]
Sub pa it B—Applicability
§117.11 General applicability.
This regulation sets forth a determination of the
reportable quantity for each substance designated
as hazardous in 40 CFR part 116. The regulation
applies to quantities of designated substances
equal to or greater than the reportable quantities,
when discharged into or upon the navigable waters
of the United States, adjoining shorelines, into or
upon the contiguous zone, or beyond the contig-
uous zone as provided in section 311(b)(3) of the
Act, except to the extent that the owner or opera-
tor can show such that discharges are made:
(a) In compliance with a permit issued under
the Marine Protection, Research and Sanctuaries
Act of 1972 (33 U.S.C. 1401 et seq.);
(b) In compliance with approved water treat-
ment plant operations as specified by local or
State regulations pertaining to safe drinking water;
(c) Pursuant to the label directions for applica-
tion of a pesticide product registered under section
3 or section 24 of the Federal Insecticide, Fun-
gicide, and Rodenticide Act (FIFRA), as amended
(7 U.S.C. 136 et seq.), or pursuant to the terms
and conditions of an experimental use permit is-
sued under section 5 of FIFRA, or pursuant to an
exemption granted under section 18 of FIFRA;
(d) In compliance with the regulations issued
under section 3004 or with permit conditions is-
sued pursuant to section 3005 of the Resource
Conservation and Recovery Act (90 Stat. 2795; 42
U.S.C. 6901);
(e) In compliance with instructions of the On-
Scene Coordinator pursuant to 40 CFR part 1510
-------
§117.13
(the National Oil and Hazardous Substances Pollu-
tion Plan) or 33 CFR 153.10(e) (Pollution by Oil
and Hazardous Substances) or in accordance with
applicable removal regulations as required by sec-
tion 31 l(j)(l)( A);
(f) In compliance with a permit issued under
§ 165.7 of Title 14 of the State of California Ad-
ministrative Code;
(g) From a properly functioning inert gas sys-
tem when used to provide inert gas to the cargo
tanks of a vessel;
(h) From a permitted source and are excluded
by § 117.12 of this regulation;
(i) To a POTW and are specifically excluded or
reserved in § 117.13; or
(j) In compliance with a permit issued under
section 404(a) of the Clean Water Act or when the
discharges are exempt from such requirements by
section 404(f) or 404(r) of the Act (33 U.S.C.
1344(a), (f), (r)).
§117.12 Applicability to discharges
from facilities with NPDES permits.
(a) This regulation does not apply to:
(1) Discharges in compliance with a permit
under section 402 of this Act;
(2) Discharges resulting from circumstances
identified, reviewed and made a part of the public
record with respect to a permit issued or modified
under section 402 of this Act, and subject to a
condition in such permit;
(3) Continuous or anticipated intermittent dis-
charges from a point source, identified in a permit
or permit application under section 402 of this
Act, which are caused by events occurring within
the scope of the relevant operating or treatment
systems; or
(b) A discharge is "in compliance with a permit
issued under section 402 of this Act" if the permit
contains an effluent limitation specifically applica-
ble to the substance discharged or an effluent limi-
tation applicable to another waste parameter which
has been specifically identified in the permit as in-
tended to limit such substance, and the discharge
is in compliance with the effluent limitation.
(c) A discharge results "from circumstances
identified, reviewed and made a part of the public
record with respect to a permit issued or modified
under section 402 of the Act, and subject to a con-
dition in such permit," whether or not the dis-
charge is in compliance with the permit, where:
(1) The permit application, the permit, or an-
other portion of the public record contains docu-
ments that specifically identify:
(i) The substance and the amount of the sub-
stance; and
(ii) The origin and source of the substance; and
(iii) The treatment which is to be provided for
the discharge either by:
(A) An on-site treatment system separate from
any treatment system treating the permittee's nor-
mal discharge; or
(B) A treatment system designed to treat the
permittee's normal discharge and which is addi-
tionally capable of treating the identified amount
of the identified substance; or
(C) Any combination of the above; and
(2) The permit contains a requirement that the
substance and amounts of the substance, as identi-
fied in §117.12(c)(l)(i) and § 117.12(c)(l)(ii) be
treated pursuant to § 117.12(c)(l)(iii) in the event
of an on-site release; and
(3) The treatment to be provided is in place.
(d) A discharge is a "continuous or anticipated
intermittent discharge from a point source, identi-
fied in a permit or permit application under sec-
tion 402 of this Act, and caused by events occur-
ring within the scope of the relevant operating or
treatment systems," whether or not the discharge
is in compliance with the permit, if:
(1) The hazardous substance is discharged from
a point source for which a valid permit exists or
for which a permit application has been submitted;
and
(2) The discharge of the hazardous substance re-
sults from:
(i) The contamination of noncontact cooling
water or storm water, provided that such cooling
water or storm water is not contaminated by an
on-site spill of a hazardous substance; or
(ii) A continuous or anticipated intermittent dis-
charge of process waste water, and the discharge
originates within the manufacturing or treatment
systems; or
(iii) An upset or failure of a treatment system
or of a process producing a continuous or antici-
pated intermittent discharge where the upset or
failure results from a control problem, an operator
error, a system failure or malfunction, an equip-
ment or system startup or shutdown, an equipment
wash, or a production schedule change, provided
that such upset or failure is not caused by an on-
site spill of a hazardous substance.
[44 FR 50776, Aug. 29, 1979, as amended at 44 FR
58910, Oct. 12, 1979]
§117.13 Applicability to discharges
from publicly owned treatment
works and their users.
(a) [Reserved]
(b) These regulations apply to all discharges of
reportable quantities to a POTW, where the dis-
charge originates from a mobile source, except
where such source has contracted with, or other-
wise received written permission from the owners
or operators of the POTW to discharge that quan-
tity, and the mobile source can show that prior to
-------
§117.14
accepting the substance from an industrial dis-
charger, the substance had been treated to comply
with any effluent limitation under sections 301,
302 or 306 or pretreatment standard under section
307 applicable to that facility.
§ 117.14 Demonstration projects.
Notwithstanding any other provision of this
part, the Administrator of the Environmental Pro-
tection Agency may, on a case-by-case basis,
allow the discharge of designated hazardous sub-
stances in connection with research or demonstra-
tion projects relating to the prevention, control, or
abatement of hazardous substance pollution. The
Administrator will allow such a discharge only
where he determines that the expected environ-
mental benefit from such a discharge will out-
weigh the potential hazard associated with the dis-
charge.
Subpart C—Notice of Discharge of
a Reportable Quantity
§117.21 Notice.
Any person in charge of a vessel or an onshore
or an offshore facility shall, as soon as he has
knowledge of any discharge of a designated haz-
ardous substance from such vessel or facility in
quantities equal to or exceeding in any 24-hour
period the reportable quantity determined by this
part, immediately notify the appropriate agency of
the United States Government of such discharge.
Notice shall be given in accordance with such pro-
cedures as the Secretary of Transportation has set
forth in 33 CFR 153.203. This provision applies to
all discharges not specifically excluded or reserved
by another section of these regulations.
§ 117.23 Liabilities for removal.
In any case where a substance designated as
hazardous in 40 CFR part 116 is discharged from
any vessel or onshore or offshore facility in a
quantity equal to or exceeding the reportable quan-
tity determined by this part, the owner, operator or
person in charge will be liable, pursuant to section
311 (f) and (g) of the Act, to the United States
Government for the actual costs incurred in the re-
moval of such substance, subject only to the de-
fenses and monetary limitations enumerated in
section 311 (f) and (g) of the Act.
The Administrator may act to mitigate the damage
to the public health or welfare caused by a dis-
charge and the cost of such mitigation shall be
considered a cost incurred under section 311(c) for
the removal of that substance by the United States
Government.
-------
PART 121—STATE CERTIFICATION
OF ACTIVITIES REQUIRING A FED-
ERAL LICENSE OR PERMIT
Subpart A—General
Sec.
121.1 Definitions.
121.2 Contents of certification.
121.3 Contents of application.
Subpart B—Determination of Effect on
Other States
121.11 Copies of documents.
121.12 Supplemental information.
121.13 Review by Regional Administrator and notifica-
tion.
121.14 Forwarding to affected State.
121.15 Hearings on objection of affected State.
121.16 Waiver.
Subpart C—Certification by the
Administrator
.21 When Administrator certifies.
.22 Applications.
.23 Notice and hearing.
.24 Certification.
.25 Adoption of new water quality standards.
.26 Inspection of facility or activity before operation.
.27 Notification to licensing or permitting agency.
.28 Termination of suspension.
Subpart D—Consultations
121.30 Review and advice.
AUTHORITY: Sec. 21 (b) and (c), 84 Stat. 91 (33 U.S.C.
1171(b) (1970)); Reorganization Plan No. 3 of 1970.
SOURCE: 36 FR 22487, Nov. 25, 1971, unless otherwise
noted. Redesignated at 37 FR 21441, Oct. 11, 1972 and
44 FR 32899, June 7, 1979.
Subpart A—General
§121.1 Definitions.
As used in this part, the following terms shall
have the meanings indicated below:
(a) License or permit means any license or per-
mit granted by an agency of the Federal Govern-
ment to conduct any activity which may result in
any discharge into the navigable waters of the
United States.
(b) Licensing or permitting agency means any
agency of the Federal Government to which appli-
cation is made for a license or permit.
(c) Administrator means the Administrator, En-
vironmental Protection Agency.
(d) Regional Administrator means the Regional
designee appointed by the Administrator, Environ-
mental Protection Agency.
(e) Certifying agency means the person or agen-
cy designated by the Governor of a State, by stat-
ute, or by other governmental act, to certify com-
pliance with applicable water quality standards. If
an interstate agency has sole authority to so certify
for the area within its jurisdiction, such interstate
agency shall be the certifying agency. Where a
State agency and an interstate agency have concur-
rent authority to certify, the State agency shall be
the certifying agency. Where water quality stand-
ards have been promulgated by the Administrator
pursuant to section 10(c)(2) of the Act, or where
no State or interstate agency has authority to cer-
tify, the Administrator shall be the certifying agen-
cy.
(f) Act means the Federal Water Pollution Con-
trol Act, 33 U.S.C. 1151, et seq.
(g) Water quality standards means standards es-
tablished pursuant to section 10(c) of the Act, and
State-adopted water quality standards for navigable
waters which are not interstate waters.
§121.2 Contents of certification.
(a) A certification made by a certifying agency
shall include the following:
(1) The name and address of the applicant;
(2) A statement that the certifying agency has
either (i) examined the application made by the
applicant to the licensing or permitting agency
(specifically identifying the number or code af-
fixed to such application) and bases its certifi-
cation upon an evaluation of the information con-
tained in such application which is relevant to
water quality considerations, or (ii) examined other
information furnished by the applicant sufficient to
permit the certifying agency to make the statement
described in paragraph (a)(3) of this section;
(3) A statement that there is a reasonable assur-
ance that the activity will be conducted in a man-
ner which will not violate applicable water quality
standards;
(4) A statement of any conditions which the
certifying agency deems necessary or desirable
with respect to the discharge of the activity; and
(5) Such other information as the certifying
agency may determine to be appropriate.
(b) The certifying agency may modify the cer-
tification in such manner as may be agreed upon
by the certifying agency, the licensing or permit-
ting agency, and the Regional Administrator.
§121.3 Contents of application.
A licensing or permitting agency shall require
an applicant for a license or permit to include in
the form of application such information relating
to water quality considerations as may be agreed
upon by the licensing or permitting agency and the
Administrator.
-------
§121.11
Subpart B—Determination of Effect
on Other States
§121.11 Copies of documents.
(a) Upon receipt from an applicant of an appli-
cation for a license or permit without an accom-
panying certification, the licensing or permitting
agency shall either: (1) Forward one copy of the
application to the appropriate certifying agency
and two copies to the Regional Administrator, or
(2) forward three copies of the application to the
Regional Administrator, pursuant to an agreement
between the licensing or permitting agency and the
Administrator that the Regional Administrator will
transmit a copy of the application to the appro-
priate certifying agency. Upon subsequent receipt
from an applicant of a certification, the licensing
or permitting agency shall forward a copy of such
certification to the Regional Administrator, unless
such certification shall have been made by the Re-
gional Administrator pursuant to § 121.24.
(b) Upon receipt from an applicant of an appli-
cation for a license or permit with an accompany-
ing certification, the licensing or permitting agency
shall forward two copies of the application and
certification to the Regional Administrator.
(c) Only those portions of the application which
relate to water quality considerations shall be for-
warded to the Regional Administrator.
§121.12 Supplemental information.
If the documents forwarded to the Regional Ad-
ministrator by the licensing or permitting agency
pursuant to §121.11 do not contain sufficient in-
formation for the Regional Administrator to make
the determination provided for in § 121.13, the Re-
gional Administrator may request, and the licens-
ing or permitting agency shall obtain from the ap-
plicant and forward to the Regional Administrator,
any supplemental information as may be required
to make such determination.
§121.13 Review by Regional Adminis-
trator and notification.
The Regional Administrator shall review the ap-
plication, certification, and any supplemental infor-
mation provided in accordance with §§121.11 and
121.12 and if the Regional Administrator deter-
mines there is reason to believe that a discharge
may affect the quality of the waters of any State
or States other than the State in which the dis-
charge originates, the Regional Administrator
shall, no later than 30 days of the date of receipt
of the application and certification from the licens-
ing or permitting agency as provided in §121.11,
so notify each affected State, the licensing or per-
mitting agency, and the applicant.
§121.14 Forwarding to affected State.
The Regional Administrator shall forward to
each affected State a copy of the material provided
in accordance with § 121.11.
§121.15 Hearings on objection of af-
fected State.
When a licensing or permitting agency holds a
public hearing on the objection of an affected
State, notice of such objection, including the
grounds for such objection, shall be forwarded to
the Regional Administrator by the licensing or
permitting agency no later than 30 days prior to
such hearing. The Regional Administrator shall at
such hearing submit his evaluation with respect to
such objection and his recommendations as to
whether and under what conditions the license or
permit should be issued.
§121.16 Waiver.
The certification requirement with respect to an
application for a license or permit shall be waived
upon:
(a) Written notification from the State or inter-
state agency concerned that it expressly waives its
authority to act on a request for certification; or
(b) Written notification from the licensing or
permitting agency to the Regional Administrator
of the failure of the State or interstate agency con-
cerned to act on such request for certification
within a reasonable period of time after receipt of
such request, as determined by the licensing or
permitting agency (which period shall generally be
considered to be 6 months, but in any event shall
not exceed 1 year).
In the event of a waiver hereunder, the Regional
Administrator shall consider such waiver as a sub-
stitute for a certification, and as appropriate, shall
conduct the review, provide the notices, and per-
form the other functions identified in §§121.13,
121.14, and 121.15. The notices required by
§121.13 shall be provided not later than 30 days
after the date of receipt by the Regional Adminis-
trator of either notification referred to herein.
Subpart C—Certification by the
Administrator
§121.21 When Administrator certifies.
Certification by the Administrator that the dis-
charge resulting from an activity requiring a li-
cense or permit will not violate applicable water
quality standards will be required where:
(a) Standards have been promulgated, in whole
or in part, by the Administrator pursuant to section
10(c)(2) of the Act: Provided, however, That the
Administrator will certify compliance only with
-------
§121.25
respect to those water quality standards promul-
gated by him; or
(b) Water quality standards have been estab-
lished, but no State or interstate agency has au-
thority to give such a certification.
§121.22 Applications.
An applicant for certification from the Adminis-
trator shall submit to the Regional Administrator a
complete description of the discharge involved in
the activity for which certification is sought, with
a request for certification signed by the applicant.
Such description shall include the following:
(a) The name and address of the applicant;
(b) A description of the facility or activity, and
of any discharge into navigable waters which may
result from the conduct of any activity including,
but not limited to, the construction or operation of
the facility, including the biological, chemical,
thermal, and other characteristics of the discharge,
and the location or locations at which such dis-
charge may enter navigable waters;
(c) A description of the function and operation
of equipment or facilities to treat wastes or other
effluents which may be discharged, including
specification of the degree of treatment expected
to be attained;
(d) The date or dates on which the activity will
begin and end, if known, and the date or dates on
which the discharge will take place;
(e) A description of the methods and means
being used or proposed to monitor the quality and
characteristics of the discharge and the operation
of equipment or facilities employed in the treat-
ment or control of wastes or other effluents.
§121.23 Notice and hearing.
The Regional Administrator will provide public
notice of each request for certification by mailing
to State, County, and municipal authorities, heads
of State agencies responsible for water quality im-
provement, and other parties known to be inter-
ested in the matter, including adjacent property
owners and conservation organizations, or may
provide such notice in a newspaper of general cir-
culation in the area in which the activity is pro-
posed to be conducted if the Regional Adminis-
trator deems mailed notice to be impracticable. In-
terested parties shall be provided an opportunity to
comment on such request in such manner as the
Regional Administrator deems appropriate. All in-
terested and affected parties will be given reason-
able opportunity to present evidence and testimony
at a public hearing on the question whether to
grant or deny certification if the Regional Admin-
istrator determines that such a hearing is necessary
or appropriate.
§121.24 Certification.
If, after considering the complete description,
the record of a hearing, if any, held pursuant to
§121.23, and such other information and data as
the Regional Administrator deems relevant, the
Regional Administrator determines that there is
reasonable assurance that the proposed activity
will not result in a violation of applicable water
quality standards, he shall so certify. If the Re-
gional Administrator determines that no water
quality standards are applicable to the waters
which might be affected by the proposed activity,
he shall so notify the applicant and the licensing
or permitting agency in writing and shall provide
the licensing or permitting agency with advice,
suggestions, and recommendations with respect to
conditions to be incorporated in any license or
permit to achieve compliance with the purpose of
this Act. In such case, no certification shall be re-
quired.
§121.25 Adoption of new water quality
standards.
(a) In any case where:
(1) A license or permit was issued without cer-
tification due to the absence of applicable water
quality standards; and
(2) Water quality standards applicable to the
waters into which the licensed or permitted activ-
ity may discharge are subsequently established;
and
(3) The Administrator is the certifying agency
because:
(i) No State or interstate agency has authority to
certify; or
(ii) Such new standards were promulgated by
the Administrator pursuant to section 10(c)(2) of
the Act; and
(4) The Regional Administrator determines that
such uncertified activity is violating water quality
standards;
Then the Regional Administrator shall notify the
licensee or permittee of such violation, including
his recommendations as to actions necessary for
compliance. If the licensee or permittee fails with-
in 6 months of the date of such notice to take ac-
tion which in the opinion of the Regional Admin-
istrator will result in compliance with applicable
water quality standards, the Regional Adminis-
trator shall notify the licensing or permitting agen-
cy that the licensee or permittee has failed, after
reasonable notice, to comply with such standards
and that suspension of the applicable license or
permit is required by section 21(b)(9)(B) of the
Act.
(b) Where a license or permit is suspended pur-
suant to paragraph (a) of this section, and where
the licensee or permittee subsequently takes action
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§121.26
which in the Regional Administrator's opinion will
result in compliance with applicable water quality
standards, the Regional Administrator shall then
notify the licensing or permitting agency that there
is reasonable assurance that the licensed or per-
mitted activity will comply with applicable water
quality standards.
§121.26 Inspection of facility or activ-
ity before operation.
Where any facility or activity has received cer-
tification pursuant to §121.24 in connection with
the issuance of a license or permit for construc-
tion, and where such facility or activity is not re-
quired to obtain an operating license or permit, the
Regional Administrator or his representative, prior
to the initial operation of such facility or activity,
shall be afforded the opportunity to inspect such
facility or activity for the purpose of determining
if the manner in which such facility or activity
will be operated or conducted will violate applica-
ble water quality standards.
§121.27 Notification to licensing or
permitting agency.
If the Regional Administrator, after an inspec-
tion pursuant to §121.26, determines that oper-
ation of the proposed facility or activity will vio-
late applicable water quality standards, he shall so
notify the applicant and the licensing or permitting
agency, including his recommendations as to re-
medial measures necessary to bring the operation
of the proposed facility into compliance with such
standards.
§121.28 Termination of suspension.
Where a licensing or permitting agency, follow-
ing a public hearing, suspends a license or permit
after receiving the Regional Administrator's notice
and recommendation pursuant to § 121.27, the ap-
plicant may submit evidence to the Regional Ad-
ministrator that the facility or activity or the oper-
ation or conduct thereof has been modified so as
not to violate water quality standards. If the Re-
gional Administrator determines that water quality
standards will not be violated, he shall so notify
the licensing or permitting agency.
Subpart D—Consultations
§ 121.30 Review and advice.
The Regional Administrator may, and upon re-
quest shall, provide licensing and permitting agen-
cies with determinations, definitions and interpre-
tations with respect to the meaning and content of
water quality standards where they have been fed-
erally approved under section 10 of the Act, and
findings with respect to the application of all ap-
plicable water quality standards in particular cases
and in specific circumstances relative to an activ-
ity for which a license or permit is sought. The
Regional Administrator may, and upon request
shall, also advise licensing and permitting agencies
as to the status of compliance by dischargers with
the conditions and requirements of applicable
water quality standards. In cases where an activity
for which a license or permit is sought will affect
water quality, but for which there are no applica-
ble water quality standards, the Regional Adminis-
trator may advise licensing or permitting agencies
with respect to conditions of such license or per-
mit to achieve compliance with the purpose of the
Act.
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PART 122—EPA ADMINISTERED PER-
MIT PROGRAMS: THE NATIONAL
POLLUTANT DISCHARGE ELIMI-
NATION SYSTEM
Subpart A—Definitions and General
Program Requirements
Sec.
122.1 Purpose and scope.
122.2 Definitions.
122.3 Exclusions.
122.4 Prohibitions (applicable to State NPDES Pro-
grams, see § 123.25).
122.5 Effect of a permit.
122.6 Continuation of expiring permits.
122.7 Confidentiality of information.
Subpart B—Permit Application and Special
NPDES Program Requirements
122.21 Application for a permit (applicable to State pro-
grams, see § 123.25).
122.22 Signatories to permit applications and reports
(applicable to State programs, see § 123.25).
122.23 Concentrated animal feeding operations (applica-
ble to State NPDES programs, see § 123.25).
122.24 Concentrated aquatic animal production facilities
(applicable to State NPDES programs, see § 123.25).
122.25 Aquaculture projects (applicable to State NPDES
programs, see § 123.25).
122.26 Storm water discharges (applicable to State
NPDES programs, see § 123.25).
122.27 Silvicultural activities (applicable to State
NPDES programs, see § 123.25).
122.28 General permits (applicable to State NPDES pro-
grams, see § 123.25).
122.29 New sources and new dischargers.
Subpart C—Permit Conditions
.41 Conditions applicable to all permits (applicable
to State programs, see § 123.25).
.42 Additional conditions applicable to specified cat-
egories of NPDES permits (applicable to State
NPDES programs, see § 123.25).
.43 Establishing permit conditions (applicable to
State programs, see § 123.25).
.44 Establishing limitations, standards and other per-
mit conditions (applicable to State NPDES programs,
see § 123.25).
.45 Calculating NPDES permit conditions (applica-
ble to State NPDES programs, see § 123.25).
.46 Duration of permits (applicable to State pro-
grams, see § 123.25).
.47 Schedules of compliance.
.48 Requirements for recording and reporting of
monitoring results (applicable to State programs, see
§123.25).
.49 Considerations under Federal law.
.50 Disposal of pollutants into wells, into publicly
owned treatment works or by land application (appli-
cable to State NPDES programs, see § 123.25).
Subpart D—Transfer, Modification, Revoca-
tion and Reissuance, and Termination
of Permits
122.61 Transfer of permits (applicable to State pro-
grams, see § 123.25).
122.62 Modification or revocation and reissuance of
permits (applicable to State programs, see §123.25).
122.63 Minor modifications of permits.
122.64 Termination of permits (applicable to State pro-
grams, see § 123.25).
APPENDIX A TO PART 122—NPDES PRIMARY INDUSTRY
CATEGORIES
APPENDIX B TO PART 122—CRITERIA FOR DETERMINING
A CONCENTRATED ANIMAL FEEDING OPERATION
(§122.23)
APPENDIX C TO PART 122—CRITERIA FOR DETERMINING
A CONCENTRATED AQUATIC ANIMAL PRODUCTION
FACILITY (§122.24)
APPENDIX D TO PART 122—NPDES PERMIT APPLICA-
TION TESTING REQUIREMENTS (§ 122.21)
APPENDIX E TO PART 122—RAINFALL ZONES OF THE
UNITED STATES
APPENDIX F TO PART 122—INCORPORATED PLACES WITH
POPULATIONS GREATER THAN 250,000 ACCORDING
TO LATEST DECENNIAL CENSUS BY BUREAU OF
CENSUS
APPENDIX G TO PART 122—PLACES WITH POPULATIONS
GREATER THAN 100,000 AND LESS THAN 250,000
ACCORDING TO LATEST DECENNIAL CENSUS BY BU-
REAU OF CENSUS
APPENDIX H TO PART 122—COUNTIES WITH UNINCOR-
PORATED URBANIZED AREAS WITH A POPULATION
OF 250,000 OR MORE ACCORDING TO THE LATEST
DECENNIAL CENSUS BY THE BUREAU OF CENSUS
APPENDIX I TO PART 122—COUNTIES WITH UNINCOR-
PORATED URBANIZED AREAS GREATER THAN
100,000, BUT LESS THAN 250,000 ACCORDING TO
THE LATEST DECENNIAL CENSUS BY THE BUREAU OF
CENSUS
AUTHORITY: The Clean Water Act, 33 U.S.C. 1251 et
seq.
SOURCE: 48 FR 14153, Apr. 1, 1983, unless otherwise
noted.
Subpart A—Definitions and
General Program Requirements
§ 122.1 Purpose and scope.
(a) Coverage. (1) These regulations contain pro-
visions for the National Pollutant Discharge
Elimination System (NPDES) Program under sec-
tion 318, 402, and 405 of the Clean Water Act
(CWA) (Pub. L. 92-500, as amended by Pub. L.
95-217, Pub. L. 95-576, Pub. L. 96^183, Pub. L.
97-117, and Pub. L. 100-4; 33 U.S.C.1251 et
seq.)
(2) These regulations cover basic EPA permit-
ting requirements (part 122), what a State must do
to obtain approval to operate its program in lieu
of a Federal program and minimum requirements
for administering the approved State program (part
123), and procedures for EPA processing of permit
1
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§122.2
applications and appeals (part 124). Part 124 is
also applicable to other EPA permitting programs,
as detailed in that part.
(b) Scope of the NPDES permit requirement. (1)
The NPDES program requires permits for the dis-
charge of "pollutants" from any "point source"
into "waters of the United States." The terms
"pollutant", "point source" and "waters of the
United States" are defined in § 122.2.
(2) The following are point sources requiring
NPDES permits for discharges:
(i) Concentrated animal feeding operations as
defined in § 122.23;
(ii) Concentrated aquatic animal production fa-
cilities as defined in § 122.24;
(iii) Discharges into aquaculture projects as set
forth in § 122.25;
(iv) Discharges of storm water as set forth in
§ 122.26; and
(v) Silvicultural point sources as defined in
§ 122.27.
(3) The permit program established under this
part also applies to owners or operators of any
treatment works treating domestic sewage, whether
or not the treatment works is otherwise required to
obtain an NPDES permit in accordance with para-
graph (a)(l) of this section, unless all requirements
implementing section 405(d) of CWA applicable
to the treatment works treating domestic sewage
are included in a permit issued under the appro-
priate provisions of subtitle C of the Solid Waste
Disposal Act, Part C of the Safe Drinking Water
Act, the Marine Protection, Research, and Sanc-
tuaries Act of 1972, or the Clean Air Act, or
under State permit programs approved by the Ad-
ministrator as adequate to assure compliance with
section 405 of the CWA.
(4) The Regional Administrator may designate
any person subject to the standards for sewage
sludge use and disposal as a "treatment works
treating domestic sewage" as defined in §122.1,
where he or she finds that a permit is necessary
to protect public health and the environment from
the adverse effects of sewage sludge or to ensure
compliance with the technical standards for sludge
use and disposal developed under CWA section
405(d). Any person designated as a "treatment
works treating domestic sewage" shall submit an
application for a permit under § 122.21 within 180
days of being notified by the Regional Adminis-
trator that a permit is required. The Regional Ad-
ministrator's decision to designate a person as a
"treatment works treating domestic sewage"
under this paragraph shall be stated in the fact
sheet or statement of basis for the permit.
(c) State programs. Certain requirements set
forth in part 122 and 124 are made applicable to
approved State programs by reference in part 123.
These references are set forth in § 123.25. If a sec-
tion or paragraph of part 122 or 124 is applicable
to States, through reference in § 123.25, that fact
is signaled by the following words at the end of
the section or paragraph heading: (Applicable to
State programs, see §123.25). If these words are
absent, the section (or paragraph) applies only to
EPA administered permits.
(d) Relation to other requirements—(1) Permit
application forms. Applicants for EPA issued per-
mits must submit their applications on EPA's per-
mit application forms when available. Most of the
information requested on these application forms
is required by these regulations. The basic infor-
mation required in the general form (Form 1) and
the additional information required for NPDES ap-
plications (Forms 2 a through d) are listed in
§122.21. Applicants for State issued permits must
use State forms which must require at a minimum
the information listed in these sections.
(2) Technical regulations. The NPDES permit
program has separate additional regulations. These
separate regulations are used by permit issuing au-
thorities to determine what requirements must be
placed in permits if they are issued. These separate
regulations are located at 40 CFR parts 125, 129,
133, 136, 40 CFR subchapter N (parts 400 through
460), and 40 CFR part 503.
(e) Public participation. This rule establishes
the requirements for public participation in EPA
and State permit issuance and enforcement and re-
lated variance proceedings, and in the approval of
State NPDES programs. These requirements carry
out the purposes of the public participation re-
quirements of 40 CFR part 25 (Public Participa-
tion), and supersede the requirements of that part
as they apply to actions covered under parts 122,
123, and 124.
(f) State authorities. Nothing in part 122, 123,
or 124 precludes more stringent State regulation of
any activity covered by these regulations, whether
or not under an approved State program.
[48 FR 14153, Apr. 1, 1983, as amended at 54 FR 18781,
May 2, 1989; 55 FR 48062, Nov. 16, 1990; 58 FR 9413,
Feb. 19, 1993; 60 FR 33931, June 29, 1995]
§122.2 Definitions.
The following definitions apply to parts 122,
123, and 124. Terms not defined in this section
have the meaning given by CWA. When a defined
term appears in a definition, the defined term is
sometimes placed in quotation marks as an aid to
readers.
Administrator means the Administrator of the
United States Environmental Protection Agency,
or an authorized representative.
Applicable standards and limitations means all
State, interstate, and federal standards and limita-
tions to which a "discharge," a "sewage sludge
use or disposal practice," or a related activity is
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§122.2
subject under the CWA, including "effluent limi-
tations," water quality standards, standards of per-
formance, toxic effluent standards or prohibitions,
"best management practices," pretreatment stand-
ards, and "standards for sewage sludge use or dis-
posal" under sections 301, 302, 303, 304, 306,
307, 308, 403 and 405 of CWA.
Application means the EPA standard national
forms for applying for a permit, including any ad-
ditions, revisions or modifications to the forms; or
forms approved by EPA for use in "approved
States," including any approved modifications or
revisions.
Approved program or approved State means a
State or interstate program which has been ap-
proved or authorized by EPA under part 123.
Average monthly discharge limitation means the
highest allowable average of "daily discharges"
over a calendar month, calculated as the sum of all
"daily discharges" measured during a calendar
month divided by the number of "daily dis-
charges" measured during that month.
Average weekly discharge limitation means the
highest allowable average of "daily discharges"
over a calendar week, calculated as the sum of all
"daily discharges" measured during a calendar
week divided by the number of "daily dis-
charges" measured during that week.
Best management practices ("BMPs") means
schedules of activities, prohibitions of practices,
maintenance procedures, and other management
practices to prevent or reduce the pollution of
"waters of the United States." BMPs also include
treatment requirements, operating procedures, and
practices to control plant site runoff, spillage or
leaks, sludge or waste disposal, or drainage from
raw material storage.
BMPs means "best management practices."
Class I sludge management facility means any
POTW identified under 40 CFR 403.8(a) as being
required to have an approved pretreatment pro-
gram (including such POTWs located in a State
that has elected to assume local program respon-
sibilities pursuant to 40 CFR 403.10(e)) and any
other treatment works treating domestic sewage
classified as a Class I sludge management facility
by the Regional Administrator, or, in the case of
approved State programs, the Regional Adminis-
trator in conjunction with the State Director, be-
cause of the potential for its sludge use or disposal
practices to adversely affect public health and the
environment.
Contiguous zone means the entire zone estab-
lished by the United States under Article 24 of the
Convention on the Territorial Sea and the Contig-
uous Zone.
Continuous discharge means a "discharge"
which occurs without interruption throughout the
operating hours of the facility, except for infre-
quent shutdowns for maintenance, process
changes, or other similar activities.
CWA means the Clean Water Act (formerly re-
ferred to as the Federal Water Pollution Control
Act or Federal Water Pollution Control Act
Amendments of 1972) Public Law 92-500, as
amended by Public Law 95-217, Public Law 95-
576, Public Law 96-483 and Public Law 97-117,
33 U.S.C. 1251 et seq.
CWA and regulations means the Clean Water
Act (CWA) and applicable regulations promul-
gated thereunder. In the case of an approved State
program, it includes State program requirements.
Daily discharge means the "discharge of a pol-
lutant" measured during a calendar day or any 24-
hour period that reasonably represents the calendar
day for purposes of sampling. For pollutants with
limitations expressed in units of mass, the "daily
discharge" is calculated as the total mass of the
pollutant discharged over the day. For pollutants
with limitations expressed in other units of meas-
urement, the "daily discharge" is calculated as the
average measurement of the pollutant over the
day.
Direct discharge means the "discharge of a pol-
lutant. ''
Director means the Regional Administrator or
the State Director, as the context requires, or an
authorized representative. When there is no "ap-
proved State program," and there is an EPA ad-
ministered program, "Director" means the Re-
gional Administrator. When there is an approved
State program, "Director" normally means the
State Director. In some circumstances, however,
EPA retains the authority to take certain actions
even when there is an approved State program.
(For example, when EPA has issued an NPDES
permit prior to the approval of a State program,
EPA may retain jurisdiction over that permit after
program approval, see §123.1.) In such cases, the
term "Director" means the Regional Adminis-
trator and not the State Director.
Discharge when used without qualification
means the "discharge of a pollutant."
Discharge of a pollutant means:
(a) Any addition of any "pollutant" or com-
bination of pollutants to "waters of the United
States" from any "point source," or
(b) Any addition of any pollutant or combina-
tion of pollutants to the waters of the "contiguous
zone" or the ocean from any point source other
than a vessel or other floating craft which is being
used as a means of transportation.
This definition includes additions of pollutants into
waters of the United States from: surface runoff
which is collected or channelled by man; dis-
charges through pipes, sewers, or other convey-
ances owned by a State, municipality, or other
person which do not lead to a treatment works;
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§122.2
and discharges through pipes, sewers, or other
conveyances, leading into privately owned treat-
ment works. This term does not include an addi-
tion of pollutants by any "indirect discharger."
Discharge Monitoring Report ("DMR") means
the EPA uniform national form, including any sub-
sequent additions, revisions, or modifications for
the reporting of self-monitoring results by permit-
tees. DMRs must be used by "approved States"
as well as by EPA. EPA will supply DMRs to any
approved State upon request. The EPA national
forms may be modified to substitute the State
Agency name, address, logo, and other similar in-
formation, as appropriate, in place of EPA's.
DMR means "Discharge Monitoring Report."
Draft permit means a document prepared under
§ 124.6 indicating the Director's tentative decision
to issue or deny, modify, revoke and reissue, ter-
minate, or reissue a "permit." A notice of intent
to terminate a permit, and a notice of intent to
deny a permit, as discussed in § 124.5, are types
of "draft permits." A denial of a request for
modification, revocation and reissuance, or termi-
nation, as discussed in § 124.5, is not a "draft per-
mit." A "proposed permit" is not a "draft per-
mit. ''
Effluent limitation means any restriction im-
posed by the Director on quantities, discharge
rates, and concentrations of "pollutants" which
are "discharged" from "point sources" into "wa-
ters of the United States," the waters of the "con-
tiguous zone," or the ocean.
Effluent limitations guidelines means a regula-
tion published by the Administrator under section
304(b) of CWA to adopt or revise "effluent limi-
tations."
Environmental Protection Agency ("EPA")
means the United States Environmental Protection
Agency.
EPA means the United States "Environmental
Protection Agency."
Facility or activity means any NPDES "point
source" or any other facility or activity (including
land or appurtenances thereto) that is subject to
regulation under the NPDES program.
Federal Indian reservation means all land with-
in the limits of any Indian reservation under the
jurisdiction of the United States Government, not-
withstanding the issuance of any patent, and in-
cluding rights-of-way running through the reserva-
tion.
General permit means an NPDES "permit" is-
sued under § 122.28 authorizing a category of dis-
charges under the CWA within a geographical
area.
Hazardous substance means any substance des-
ignated under 40 CFR part 116 pursuant to section
311 of CWA.
Indian Tribe means any Indian Tribe, band,
group, or community recognized by the Secretary
of the Interior and exercising governmental author-
ity over a Federal Indian reservation.
Indirect discharger means a nondomestic dis-
charger introducing "pollutants" to a "publicly
owned treatment works."
Interstate agency means an agency of two or
more States established by or under an agreement
or compact approved by the Congress, or any
other agency of two or more States having sub-
stantial powers or duties pertaining to the control
of pollution as determined and approved by the
Administrator under the CWA and regulations.
Major facility means any NPDES "facility or
activity" classified as such by the Regional Ad-
ministrator, or, in the case of "approved State pro-
grams," the Regional Administrator in conjunction
with the State Director.
Maximum daily discharge limitation means the
highest allowable "daily discharge."
Municipality means a city, town, borough, coun-
ty, parish, district, association, or other public
body created by or under State law and having ju-
risdiction over disposal of sewage, industrial
wastes, or other wastes, or an Indian tribe or an
authorized Indian tribal organization, or a des-
ignated and approved management agency under
section 208 of CWA.
National Pollutant Discharge Elimination Sys-
tem (NPDES) means the national program for is-
suing, modifying, revoking and reissuing, termi-
nating, monitoring and enforcing permits, and im-
posing and enforcing pretreatment requirements,
under sections 307, 402, 318, and 405 of CWA.
The term includes an "approved program."
New discharger means any building, structure,
facility, or installation:
(a) From which there is or may be a "discharge
of pollutants;"
(b) That did not commence the "discharge of
pollutants" at a particular "site" prior to August
13, 1979;
(c) Which is not a "new source;" and
(d) Which has never received a finally effective
NDPES permit for discharges at that "site."
This definition includes an "indirect discharger"
which commences discharging into ' 'waters of the
United States" after August 13, 1979. It also in-
cludes any existing mobile point source (other
than an offshore or coastal oil and gas exploratory
drilling rig or a coastal oil and gas developmental
drilling rig) such as a seafood processing rig, sea-
food processing vessel, or aggregate plant, that be-
gins discharging at a "site" for which it does not
have a permit; and any offshore or coastal mobile
oil and gas exploratory drilling rig or coastal mo-
bile oil and gas developmental drilling rig that
commences the discharge of pollutants after Au-
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§122.2
gust 13, 1979, at a "site" under EPA's permitting
jurisdiction for which it is not covered by an indi-
vidual or general permit and which is located in
an area determined by the Regional Administrator
in the issuance of a final permit to be an area or
biological concern. In determining whether an area
is an area of biological concern, the Regional
Administrator shall consider the factors specified
in 40 CFR 125.122(a) (1) through (10).
An offshore or coastal mobile exploratory drilling
rig or coastal mobile developmental drilling rig
will be considered a "new discharger" only for
the duration of its discharge in an area of biologi-
cal concern.
New source means any building, structure, facil-
ity, or installation from which there is or may be
a "discharge of pollutants," the construction of
which commenced:
(a) After promulgation of standards of perform-
ance under section 306 of CWA which are appli-
cable to such source, or
(b) After proposal of standards of performance
in accordance with section 306 of CWA which are
applicable to such source, but only if the standards
are promulgated in accordance with section 306
within 120 days of their proposal.
NPDES means "National Pollutant Discharge
Elimination System."
Owner or operator means the owner or operator
of any "facility or activity" subject to regulation
under the NPDES program.
Permit means an authorization, license, or
equivalent control document issued by EPA or an
"approved State" to implement the requirements
of this part and parts 123 and 124. "Permit" in-
cludes an NPDES "general permit" (§122.28).
Permit does not include any permit which has not
yet been the subject of final agency action, such
as a "draft permit" or a "proposed permit."
Person means an individual, association, part-
nership, corporation, municipality, State or Federal
agency, or an agent or employee thereof.
Point source means any discernible, confined,
and discrete conveyance, including but not limited
to, any pipe, ditch, channel, tunnel, conduit, well,
discrete fissure, container, rolling stock, con-
centrated animal feeding operation, landfill leach-
ate collection system, vessel or other floating craft
from which pollutants are or may be discharged.
This term does not include return flows from irri-
gated agriculture or agricultural storm water run-
off. (See § 122.3).
Pollutant means dredged spoil, solid waste, in-
cinerator residue, filter backwash, sewage, gar-
bage, sewage sludge, munitions, chemical wastes,
biological materials, radioactive materials (except
those regulated under the Atomic Energy Act of
1954, as amended (42 U.S.C. 2011 et seq.)), heat,
wrecked or discarded equipment, rock, sand, cellar
dirt and industrial, municipal, and agricultural
waste discharged into water. It does not mean:
(a) Sewage from vessels; or
(b) Water, gas, or other material which is in-
jected into a well to facilitate production of oil or
gas, or water derived in association with oil and
gas production and disposed of in a well, if the
well used either to facilitate production or for dis-
posal purposes is approved by authority of the
State in which the well is located, and if the State
determines that the injection or disposal will not
result in the degradation of ground or surface
water resources.
NOTE: Radioactive materials covered by the Atomic
Energy Act are those encompassed in its definition of
source, byproduct, or special nuclear materials. Examples
of materials not covered include radium and accelerator-
produced isotopes. See Train v. Colorado Public Interest
Research Group, Inc., 426 U.S. 1 (1976).
POTW means "publicly owned treatment
works.''
Primary industry category means any industry
category listed in the NRDC settlement agreement
(Natural Resources Defense Council et al. v.
Train, 8 E.R.C. 2120 (D.D.C. 1976), modified 12
E.R.C. 1833 (D.D.C. 1979)); also listed in appen-
dix A of part 122.
Privately owned treatment works means any de-
vice or system which is (a) used to treat wastes
from any facility whose operator is not the opera-
tor of the treatment works and (b) not a
"POTW."
Process wastewater means any water which,
during manufacturing or processing, comes into di-
rect contact with or results from the production or
use of any raw material, intermediate product, fin-
ished product, byproduct, or waste product.
Proposed permit means a State NPDES "per-
mit' ' prepared after the close of the public com-
ment period (and, when applicable, any public
hearing and administrative appeals) which is sent
to EPA for review before final issuance by the
State. A "proposed permit" is not a "draft per-
mit. ''
Publicly owned treatment works ("POTW")
means any device or system used in the treatment
(including recycling and reclamation) of municipal
sewage or industrial wastes of a liquid nature
which is owned by a "State" or "municipality."
This definition includes sewers, pipes, or other
conveyances only if they convey wastewater to a
POTW providing treatment.
Recommencing discharger means a source
which recommences discharge after terminating
operations.
Regional Administrator means the Regional Ad-
ministrator of the appropriate Regional Office of
the Environmental Protection Agency or the au-
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§122.2
thorized representative of the Regional Adminis-
trator.
Schedule of compliance means a schedule of re-
medial measures included in a "permit", includ-
ing an enforceable sequence of interim require-
ments (for example, actions, operations, or mile-
stone events) leading to compliance with the CWA
and regulations.
Secondary industry category means any industry
category which is not a "primary industry cat-
egory."
Secretary means the Secretary of the Army, act-
ing through the Chief of Engineers.
Septage means the liquid and solid material
pumped from a septic tank, cesspool, or similar
domestic sewage treatment system, or a holding
tank when the system is cleaned or maintained.
Sewage from vessels means human body wastes
and the wastes from toilets and other receptacles
intended to receive or retain body wastes that are
discharged from vessels and regulated under sec-
tion 312 of CWA, except that with respect to com-
mercial vessels on the Great Lakes this term in-
cludes graywater. For the purposes of this defini-
tion, "graywater" means galley, bath, and shower
water.
Sewage Sludge means any solid, semi-solid, or
liquid residue removed during the treatment of
municipal waste water or domestic sewage. Sew-
age sludge includes, but is not limited to, solids
removed during primary, secondary, or advanced
waste water treatment, scum, septage, portable toi-
let pumpings, type III marine sanitation device
pumpings (33 CFR part 159), and sewage sludge
products. Sewage sludge does not include grit or
screenings, or ash generated during the inciner-
ation of sewage sludge.
Sewage sludge use or disposal practice means
the collection, storage, treatment, transportation,
processing, monitoring, use, or disposal of sewage
sludge.
Site means the land or water area where any
"facility or activity" is physically located or con-
ducted, including adjacent land used in connection
with the facility or activity.
Sludge-only facility means any "treatment
works treating domestic sewage" whose methods
of sewage sludge use or disposal are subject to
regulations promulgated pursuant to section 405(d)
of the CWA, and is required to obtain a permit
under § 122.1(b)(3) of this part.
Standards for sewage sludge use or disposal
means the regulations promulgated pursuant to
section 405(d) of the CWA which govern mini-
mum requirements for sludge quality, management
practices, and monitoring and reporting applicable
to sewage sludge or the use or disposal of sewage
sludge by any person.
State means any of the 50 States, the District of
Columbia, Guam, the Commonwealth of Puerto
Rico, the Virgin Islands, American Samoa, the
Commonwealth of the Northern Mariana Islands,
the Trust Territory of the Pacific Islands, or an In-
dian Tribe as defined in these regulations which
meets the requirements of § 123.31 of this chapter.
State Director means the chief administrative
officer of any State or interstate agency operating
an "approved program," or the delegated rep-
resentative of the State Director. If responsibility
is divided among two or more State or interstate
agencies, "State Director" means the chief admin-
istrative officer of the State or interstate agency
authorized to perform the particular procedure or
function to which reference is made.
State/EPA Agreement means an agreement be-
tween the Regional Administrator and the State
which coordinates EPA and State activities, re-
sponsibilities and programs including those under
the CWA programs.
Total dissolved solids means the total dissolved
(filterable) solids as determined by use of the
method specified in 40 CFR part 136.
Toxic pollutant means any pollutant listed as
toxic under section 307(a)(l) or, in the case of
"sludge use or disposal practices," any pollutant
identified in regulations implementing section
405(d) of the CWA.
Treatment works treating domestic sewage
means a POTW or any other sewage sludge or
waste water treatment devices or systems, regard-
less of ownership (including federal facilities),
used in the storage, treatment, recycling, and rec-
lamation of municipal or domestic sewage, includ-
ing land dedicated for the disposal of sewage
sludge. This definition does not include septic
tanks or similar devices. For purposes of this defi-
nition, "domestic sewage" includes waste and
waste water from humans or household operations
that are discharged to or otherwise enter a treat-
ment works. In States where there is no approved
State sludge management program under section
405(f) of the CWA, the Regional Administrator
may designate any person subject to the standards
for sewage sludge use and disposal in 40 CFR part
503 as a "treatment works treating domestic sew-
age," where he or she finds that there is a poten-
tial for adverse effects on public health and the
environment from poor sludge quality or poor
sludge handling, use or disposal practices, or
where he or she finds that such designation is nec-
essary to ensure that such person is in compliance
with 40 CFR part 503.
Variance means any mechanism or provision
under section 301 or 316 of CWA or under 40
CFR part 125, or in the applicable "effluent limi-
tations guidelines" which allows modification to
or waiver of the generally applicable effluent limi-
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§122.3
tation requirements or time deadlines of CWA.
This includes provisions which allow the establish-
ment of alternative limitations based on fundamen-
tally different factors or on sections 301(c),
301(g), 301(h), 301(i), or 316(a) of CWA.
Waters of the United States or waters of the
U.S. means:
(a) All waters which are currently used, were
used in the past, or may be susceptible to use in
interstate or foreign commerce, including all wa-
ters which are subject to the ebb and flow of the
tide;
(b) All interstate waters, including interstate
"wetlands;"
(c) All other waters such as intrastate lakes, riv-
ers, streams (including intermittent streams),
mudflats, sandflats, "wetlands," sloughs, prairie
potholes, wet meadows, playa lakes, or natural
ponds the use, degradation, or destruction of
which would affect or could affect interstate or
foreign commerce including any such waters:
(1) Which are or could be used by interstate or
foreign travelers for recreational or other purposes;
(2) From which fish or shellfish are or could be
taken and sold in interstate or foreign commerce;
or
(3) Which are used or could be used for indus-
trial purposes by industries in interstate commerce;
(d) All impoundments of waters otherwise de-
fined as waters of the United States under this def-
inition;
(e) Tributaries of waters identified in paragraphs
(a) through (d) of this definition;
(f) The territorial sea; and
(g) "Wetlands" adjacent to waters (other than
waters that are themselves wetlands) identified in
paragraphs (a) through (f) of this definition.
Waste treatment systems, including treatment
ponds or lagoons designed to meet the require-
ments of CWA (other than cooling ponds as de-
fined in 40 CFR 423.11(m) which also meet the
criteria of this definition) are not waters of the
United States. This exclusion applies only to man-
made bodies of water which neither were origi-
nally created in waters of the United States (such
as disposal area in wetlands) nor resulted from the
impoundment of waters of the United States. [See
Note 1 of this section.] Waters of the United
States do not include prior converted cropland.
Notwithstanding the determination of an area's
status as prior converted cropland by any other
federal agency, for the purposes of the Clean
Water Act, the final authority regarding Clean
Water Act jurisdiction remains with EPA.
Wetlands means those areas that are inundated
or saturated by surface or groundwater at a fre-
quency and duration sufficient to support, and that
under normal circumstances do support, a preva-
lence of vegetation typically adapted for life in
saturated soil conditions. Wetlands generally in-
clude swamps, marshes, bogs, and similar areas.
Whole effluent toxicity means the aggregate
toxic effect of an effluent measured directly by a
toxicity test.
NOTE: At 45 FR 48620, July 21, 1980, the Environ-
mental Protection Agency suspended until further notice
in § 122.2, the last sentence, beginning "This exclusion
applies . . ." in the definition of "Waters of the United
States." This revision continues that suspension.1
(Clean Water Act (33 U.S.C. 1251 et seq), Safe Drinking
Water Act (42 U.S.C. 300f et seq.), Clean Air Act (42
U.S.C. 7401 et seq.), Resource Conservation and Recov-
ery Act (42 U.S.C. 6901 et seq.))
[48 FR 14153, Apr. 1, 1983, as amended at 48 FR 39619,
Sept. 1, 1983; 50 FR 6940, 6941, Feb. 19, 1985; 54 FR
254, Jan. 4, 1989; 54 FR 18781, May 2, 1989; 54 FR
23895, June 2, 1989; 58 FR 45039, Aug. 25, 1993; 58
FR 67980, Dec. 22, 1993]
§122.3 Exclusions.
The following discharges do not require NPDES
permits:
(a) Any discharge of sewage from vessels, efflu-
ent from properly functioning marine engines,
laundry, shower, and galley sink wastes, or any
other discharge incidental to the normal operation
of a vessel. This exclusion does not apply to rub-
bish, trash, garbage, or other such materials dis-
charged overboard; nor to other discharges when
the vessel is operating in a capacity other than as
a means of transportation such as when used as an
energy or mining facility, a storage facility or a
seafood processing facility, or when secured to a
storage facility or a seafood processing facility, or
when secured to the bed of the ocean, contiguous
zone or waters of the United States for the pur-
pose of mineral or oil exploration or development.
(b) Discharges of dredged or fill material into
waters of the United States which are regulated
under section 404 of CWA.
(c) The introduction of sewage, industrial wastes
or other pollutants into publicly owned treatment
works by indirect dischargers. Plans or agreements
to switch to this method of disposal in the future
do not relieve dischargers of the obligation to have
and comply with permits until all discharges of
pollutants to waters of the United States are elimi-
nated. (See also § 122.47(b)). This exclusion does
not apply to the introduction of pollutants to pri-
vately owned treatment works or to other dis-
charges through pipes, sewers, or other convey-
ances owned by a State, municipality, or other
party not leading to treatment works.
(d) Any discharge in compliance with the in-
structions of an On-Scene Coordinator pursuant to
40 CFR part 300 (The National Oil and Hazardous
EDITORIAL NOTE: The words "This revision" refer to
the document published at 48 FR 14153, Apr. 1, 1983.
-------
§122.4
Substances Pollution Contingency Plan) or 33
CFR 153.10(e) (Pollution by Oil and Hazardous
Substances).
(e) Any introduction of pollutants from non
point-source agricultural and silvicultural activi-
ties, including storm water runoff from orchards,
cultivated crops, pastures, range lands, and forest
lands, but not discharges from concentrated animal
feeding operations as defined in § 122.23, dis-
charges from concentrated aquatic animal produc-
tion facilities as defined in § 122.24, discharges to
aquaculture projects as defined in § 122.25, and
discharges from silvicultural point sources as de-
fined in § 122.27.
(f) Return flows from irrigated agriculture.
(g) Discharges into a privately owned treatment
works, except as the Director may otherwise re-
quire under § 122.44(m).
[48 FR 14153, Apr. 1, 1983, as amended at 54 FR 254,
258, Jan. 4, 1989]
§122.4 Prohibitions (applicable to
State NPDES programs, see
§123.25).
No permit may be issued:
(a) When the conditions of the permit do not
provide for compliance with the applicable re-
quirements of CWA, or regulations promulgated
under CWA;
(b) When the applicant is required to obtain a
State or other appropriate certification under sec-
tion 401 of CWA and §124.53 and that certifi-
cation has not been obtained or waived;
(c) By the State Director where the Regional
Administrator has objected to issuance of the per-
mit under § 123.44;
(d) When the imposition of conditions cannot
ensure compliance with the applicable water qual-
ity requirements of all affected States;
(e) When, in the judgment of the Secretary, an-
chorage and navigation in or on any of the waters
of the United States would be substantially im-
paired by the discharge;
(f) For the discharge of any radiological, chemi-
cal, or biological warfare agent or high-level ra-
dioactive waste;
(g) For any discharge inconsistent with a plan
or plan amendment approved under section 208(b)
of CWA;
(h) For any discharge to the territorial sea, the
waters of the contiguous zone, or the oceans in the
following circumstances:
(1) Before the promulgation of guidelines under
section 403(c) of CWA (for determining degrada-
tion of the waters of the territorial seas, the contig-
uous zone, and the oceans) unless the Director de-
termines permit issuance to be in the public inter-
est; or
(2) After promulgation of guidelines under sec-
tion 403(c) of CWA, when insufficient information
exists to make a reasonable judgment whether the
discharge complies with them.
(i) To a new source or a new discharger, if the
discharge from its construction or operation will
cause or contribute to the violation of water qual-
ity standards. The owner or operator of a new
source or new discharger proposing to discharge
into a water segment which does not meet applica-
ble water quality standards or is not expected to
meet those standards even after the application of
the effluent limitations required by sections
301(b)(l)(A) and 301(b)(l)(B) of CWA, and for
which the State or interstate agency has performed
a pollutants load allocation for the pollutant to be
discharged, must demonstrate, before the close of
the public comment period, that:
(1) There are sufficient remaining pollutant load
allocations to allow for the discharge; and
(2) The existing dischargers into that segment
are subject to compliance schedules designed to
bring the segment into compliance with applicable
water quality standards.
[48 FR 14153, Apr. 1, 1983, as amended at 50 FR 6940,
Feb. 19, 1985]
§ 122.5 Effect of a permit.
(a) Applicable to State programs, see §123.25.
(1) Except for any toxic effluent standards and
prohibitions imposed under section 307 of the
CWA and "standards for sewage sludge use or
disposal" under 405(d) of the CWA, compliance
with a permit during its term constitutes compli-
ance, for purposes of enforcement, with sections
301, 302, 306, 307, 318, 403, and 405 (a)-(b) of
CWA. However, a permit may be modified, re-
voked and reissued, or terminated during its term
for cause as set forth in §§ 122.62 and 122.64.
(2) Compliance with a permit condition which
implements a particular "standard for sewage
sludge use or disposal" shall be an affirmative de-
fense in any enforcement action brought for a vio-
lation of that "standard for sewage sludge use or
disposal" pursuant to sections 405(e) and 309 of
the CWA.
(b) Applicable to State programs, See §123.25.
The issuance of a permit does not convey any
property rights of any sort, or any exclusive privi-
lege.
(c) The issuance of a permit does not authorize
any injury to persons or property or invasion of
other private rights, or any infringement of State
or local law or regulations.
[48 FR 14153, Apr. 1, 1983, as amended at 54 FR 18782,
May 2, 1989]
-------
§122.21
§122.6 Continuation of expiring per-
mits.
(a) EPA permits. When EPA is the permit-issu-
ing authority, the conditions of an expired permit
continue in force under 5 U.S.C. 558(c) until the
effective date of a new permit (see § 124.15) if:
(1) The permittee has submitted a timely appli-
cation under § 122.21 which is a complete (under
§ 122.21(e)) application for a new permit; and
(2) The Regional Administrator, through no
fault of the permittee does not issue a new permit
with an effective date under §124.15 on or before
the expiration date of the previous permit (for ex-
ample, when issuance is impracticable due to time
or resource constraints).
(b) Effect. Permits continued under this section
remain fully effective and enforceable.
(c) Enforcement. When the permittee is not in
compliance with the conditions of the expiring or
expired permit the Regional Administrator may
choose to do any or all of the following:
(1) Initiate enforcement action based upon the
permit which has been continued;
(2) Issue a notice of intent to deny the new per-
mit under § 124.6. If the permit is denied, the
owner or operator would then be required to cease
the activities authorized by the continued permit or
be subject to enforcement action for operating
without a permit;
(3) Issue a new permit under part 124 with ap-
propriate conditions; or
(4) Take other actions authorized by these regu-
lations.
(d) State continuation. (1) An EPA-issued per-
mit does not continue in force beyond its expira-
tion date under Federal law if at that time a State
is the permitting authority. States authorized to ad-
minister the NPDES program may continue either
EPA or State-issued permits until the effective
date of the new permits, if State law allows. Oth-
erwise, the facility or activity is operating without
a permit from the time of expiration of the old
permit to the effective date of the State-issued new
permit.
[48 FR 14153, Apr. 1, 1983, as amended at 50 FR 6940,
Feb. 19, 1985]
§ 122.7 Confidentiality of information.
(a) In accordance with 40 CFR part 2, any in-
formation submitted to EPA pursuant to these reg-
ulations may be claimed as confidential by the
submitter. Any such claim must be asserted at the
time of submission in the manner prescribed on
the application form or instructions or, in the case
of other submissions, by stamping the words
"confidential business information" on each page
containing such information. If no claim is made
at the time of submission, EPA may make the in-
formation available to the public without further
notice. If a claim is asserted, the information will
be treated in accordance with the procedures in 40
CFR part 2 (Public Information).
(b) Applicable to State programs, see §123.25.
Claims of confidentiality for the following infor-
mation will be denied:
(1) The name and address of any permit appli-
cant or permittee;
(2) Permit applications, permits, and effluent
data.
(c) Applicable to State programs, see §123.25.
Information required by NPDES application forms
provided by the Director under §122.21 may not
be claimed confidential. This includes information
submitted on the forms themselves and any attach-
ments used to supply information required by the
forms.
Subpart B—Permit Application
and Special NPDES Program
Requirements
§122.21 Application for a permit (ap-
rlicable to State programs, see
123.25).
(a) Duty to apply. Any person who discharges
or proposes to discharge pollutants or who owns
or operates a "sludge-only facility" and who does
not have an effective permit, except persons cov-
ered by general permits under § 122.28, excluded
under § 122.3, or a user of a privately owned treat-
ment works unless the Director requires otherwise
under § 122.44(m), shall submit a complete appli-
cation (which shall include a BMP program if nec-
essary under 40 CFR 125.102) to the Director in
accordance with this section and part 124.
(b) Who applies? When a facility or activity is
owned by one person but is operated by another
person, it is the operator's duty to obtain a permit.
(c) Time to apply. (1) Any person proposing a
new discharge, shall submit an application at least
180 days before the date on which the discharge
is to commence, unless permission for a later date
has been granted by the Director. Facilities pro-
posing a new discharge of storm water associated
with industrial activity shall submit an application
180 days before that facility commences industrial
activity which may result in a discharge of storm
water associated with that industrial activity. Fa-
cilities described under § 122.26(b)(14)(x) shall
submit applications at least 90 days before the
date on which construction is to commence. Dif-
ferent submittal dates may be required under the
terms of applicable general permits. Persons pro-
posing a new discharge are encouraged to submit
their applications well in advance of the 90 or 180
day requirements to avoid delay. See also para-
graph (k) of this section and § 122.26 (c)(l)(i)(G)
and (c)(l)(ii). New discharges composed entirely
-------
§122.21
of storm water, other than those dischargers identi-
fied by § 122.26(a)(l), shall apply for and obtain
a permit according to the application requirements
in § 122.26(g).
(2) Permits under section 405(f) of CWA. (i)
Any existing "treatment works treating domestic
sewage" required to have, or requesting site-spe-
cific pollutant limits as provided in 40 CFR part
503, must submit the permit application informa-
tion required by paragraph (d)(3)(ii) of this section
within 180 days after publication of a standard ap-
plicable to its sewage sludge use or disposal
practice(s). After this 180 day period, "treatment
works treating domestic sewage" may only apply
for site-specific pollutant limits for good cause and
such requests must be made within 180 days of
becoming aware that good cause exists.
(ii) Any "treatment works treating domestic
sewage" with a currently effective NPDES permit,
not addressed under paragraph (c)(2)(i) of this sec-
tion, must submit the application information re-
quired by paragraph (d)(3)(ii) of this section at the
time of its next NPDES permit renewal applica-
tion. Such information must be submitted in ac-
cordance with paragraph (d) of this section.
(iii) Any other existing "treatment works treat-
ing domestic sewage" not addressed under para-
graphs (c)(2) (i) or (ii) of this section must submit
the information listed in paragraphs (c)(2)(iii) (A)-
(E) of this section, to the Director within 1 year
after publication of a standard applicable to its
sewage sludge use or disposal practice(s). The Di-
rector shall determine when such "treatment
works treating domestic sewage" must apply for
a permit.
(A) Name, mailing address and location of the
"treatment works treating domestic sewage;"
(B) The operator's name, address, telephone
number, ownership status, and status as Federal,
State, private, public or other entity;
(C) A description of the sewage sludge use or
disposal practices (including, where applicable, the
location of any sites where sewage sludge is trans-
ferred for treatment, use, or disposal, as well as
the name of the applicator or other contractor who
applies the sewage sludge to land, if different from
the "treatment works treating domestic sewage,"
and the name of any distributors if the sewage
sludge is sold or given away in a bag or similar
enclosure for application to the land, if different
from the "treatment works treating domestic sew-
age");
(D) Annual amount of sewage sludge generated,
treated, used or disposed (dry weight basis); and
(E) The most recent data the "treatment works
treating domestic sewage" may have on the qual-
ity of the sewage sludge.
(iv) Notwithstanding paragraphs (c)(2) (i), (ii),
or (iii) of this section, the Director may require
permit applications from any "treatment works
treating domestic sewage" at any time if the Di-
rector determines that a permit is necessary to pro-
tect public health and the environment from any
potential adverse effects that may occur from toxic
pollutants in sewage sludge.
(v) Any "treatment works treating domestic
sewage" that commences operations after promul-
gation of an applicable "standard for sewage
sludge use or disposal" shall submit an applica-
tion to the Director at least 180 days prior to the
date proposed for commencing operations.
(d) Duty to reapply. (1) Any POTW with a cur-
rently effective permit shall submit a new applica-
tion at least 180 days before the expiration date of
the existing permit, unless permission for a later
date has been granted by the Director. (The Direc-
tor shall not grant permission for applications to
be submitted later than the expiration date of the
existing permit.)
(2) All other permittees with currently effective
permits shall submit a new application 180 days
before the existing permit expires, except that:
(i) The Regional Administrator may grant per-
mission to submit an application later than the
deadline for submission otherwise applicable, but
no later than the permit expiration date; and
(3)(i) All applicants for EPA-issued permits,
other than POTWs, new sources, and "sludge-only
facilities," must complete Forms 1 and either 2b
or 2c of the consolidated permit application forms
to apply under § 122.21 and paragraphs (f), (g),
and (h) of this section.
(ii) In addition to any other applicable require-
ments in this part, all POTWs and other "treat-
ment works treating domestic sewage," including
"sludge-only facilities," must submit with their
applications the information listed at 40 CFR
501.15 (a)(2) within the time frames established in
paragraph (c)(2) of this section.
(e) Completeness. The Director shall not issue a
permit before receiving a complete application for
a permit except for NPDES general permits. An
application for a permit is complete when the Di-
rector receives an application form and any sup-
plemental information which are completed to his
or her satisfaction. The completeness of any appli-
cation for a permit shall be judged independently
of the status of any other permit application or
permit for the same facility or activity. For EPA
administered NPDES programs, an application
which is reviewed under § 124.3 is complete when
the Director receives either a complete application
or the information listed in a notice of deficiency.
(f) Information requirements. All applicants for
NPDES permits shall provide the following infor-
mation to the Director, using the application form
provided by the Director (additional information
10
-------
§122.21
required of applicants is set forth in paragraphs (g)
through (k) of this section).
(1) The activities conducted by the applicant
which require it to obtain an NPDES permit.
(2) Name, mailing address, and location of the
facility for which the application is submitted.
(3) Up to four SIC codes which best reflect the
principal products or services provided by the fa-
cility.
(4) The operator's name, address, telephone
number, ownership status, and status as Federal,
State, private, public, or other entity.
(5) Whether the facility is located on Indian
lands.
(6) A listing of all permits or construction ap-
provals received or applied for under any of the
following programs:
(i) Hazardous Waste Management program
under RCRA.
(ii) UIC program under SOW A.
(iii) NPDES program under CWA.
(iv) Prevention of Significant Deterioration
(PSD) program under the Clean Air Act.
(v) Nonattainment program under the Clean Air
Act.
(vi) National Emission Standards for Hazardous
Pollutants (NESHAPS) preconstruction approval
under the Clean Air Act.
(vii) Ocean dumping permits under the Marine
Protection Research and Sanctuaries Act.
(viii) Dredge or fill permits under section 404
of CWA.
(ix) Other relevant environmental permits, in-
cluding State permits.
(7) A topographic map (or other map if a topo-
graphic map is unavailable) extending one mile
beyond the property boundaries of the source, de-
picting the facility and each of its intake and dis-
charge structures; each of its hazardous waste
treatment, storage, or disposal facilities; each well
where fluids from the facility are injected under-
ground; and those wells, springs, other surface
water bodies, and drinking water wells listed in
public records or otherwise known to the applicant
in the map area.
(8) A brief description of the nature of the busi-
ness.
(g) Application requirements for existing manu-
facturing, commercial, mining, and silvicultural
dischargers. Existing manufacturing, commercial
mining, and silvicultural dischargers applying for
NPDES permits, except for those facilities subject
to the requirements of §122.21(h), shall provide
the following information to the Director, using
application forms provided by the Director.
(1) Outfall location. The latitude and longitude
to the nearest 15 seconds and the name of the re-
ceiving water.
(2) Line drawing. A line drawing of the water
flow through the facility with a water balance,
showing operations contributing wastewater to the
effluent and treatment units. Similar processes, op-
erations, or production areas may be indicated as
a single unit, labeled to correspond to the more
detailed identification under paragraph (g)(3) of
this section. The water balance must show approx-
imate average flows at intake and discharge points
and between units, including treatment units. If a
water balance cannot be determined (for example,
for certain mining activities), the applicant may
provide instead a pictorial description of the nature
and amount of any sources of water and any col-
lection and treatment measures.
(3) Average flows and treatment. A narrative
identification of each type of process, operation, or
production area which contributes wastewater to
the effluent for each outfall, including process
wastewater, cooling water, and stormwater runoff;
the average flow which each process contributes;
and a description of the treatment the wastewater
receives, including the ultimate disposal of any
solid or fluid wastes other than by discharge. Proc-
esses, operations, or production areas may be de-
scribed in general terms (for example, "dye-mak-
ing reactor", "distillation tower"). For a privately
owned treatment works, this information shall in-
clude the identity of each user of the treatment
works. The average flow of point sources com-
posed of storm water may be estimated. The basis
for the rainfall event and the method of estimation
must be indicated.
(4) Intermittent flows. If any of the discharges
described in paragraph (g)(3) of this section are
intermittent or seasonal, a description of the fre-
quency, duration and flow rate of each discharge
occurrence (except for stormwater runoff, spillage
or leaks).
(5) Maximum production. If an effluent guide-
line promulgated under section 304 of CWA ap-
plies to the applicant and is expressed in terms of
production (or other measure of operation), a rea-
sonable measure of the applicant's actual produc-
tion reported in the units used in the applicable ef-
fluent guideline. The reported measure must reflect
the actual production of the facility as required by
§ 122.45(b)(2).
(6) Improvements. If the applicant is subject to
any present requirements or compliance schedules
for construction, upgrading or operation of waste
treatment equipment, an identification of the abate-
ment requirement, a description of the abatement
project, and a listing of the required and projected
final compliance dates.
(7) Effluent characteristics. Information on the
discharge of pollutants specified in this paragraph
(except information on storm water discharges
which is to be provided as specified in § 122.26).
11
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§122.21
When "quantitative data" for a pollutant are re-
quired, the applicant must collect a sample of ef-
fluent and analyze it for the pollutant in accord-
ance with analytical methods approved under 40
CFR part 136. When no analytical method is ap-
proved the applicant may use any suitable method
but must provide a description of the method.
When an applicant has two or more outfalls with
substantially identical effluents, the Director may
allow the applicant to test only one outfall and re-
port that the quantitative data also apply to the
substantially identical outfalls. The requirements in
paragraphs (g)(7) (iii) and (iv) of this section that
an applicant must provide quantitative data for
certain pollutants known or believed to be present
do not apply to pollutants present in a discharge
solely as the result of their presence in intake
water; however, an applicant must report such pol-
lutants as present. Grab samples must be used for
pH, temperature, cyanide, total phenols, residual
chlorine, oil and grease, fecal coliform and fecal
streptococcus. For all other pollutants, 24-hour
composite samples must be used. However, a min-
imum of one grab sample may be taken for
effluents from holding ponds or other impound-
ments with a retention period greater than 24
hours. In addition, for discharges other than storm
water discharges, the Director may waive compos-
ite sampling for any outfall for which the appli-
cant demonstrates that the use of an automatic
sampler is infeasible and that the minimum of four
(4) grab samples will be a representative sample
of the effluent being discharged. For storm water
discharges, all samples shall be collected from the
discharge resulting from a storm event that is
greater than 0.1 inch and at least 72 hours from
the previously measurable (greater than 0.1 inch
rainfall) storm event. Where feasible, the variance
in the duration of the event and the total rainfall
of the event should not exceed 50 percent from
the average or median rainfall event in that area.
For all applicants, a flow-weighted composite shall
be taken for either the entire discharge or for the
first three hours of the discharge. The flow-
weighted composite sample for a storm water dis-
charge may be taken with a continuous sampler or
as a combination of a minimum of three sample
aliquots taken in each hour of discharge for the
entire discharge or for the first three hours of the
discharge, with each aliquot being separated by a
minimum period of fifteen minutes (applicants
submitting permit applications for storm water dis-
charges under § 122.26(d) may collect flow
weighted composite samples using different proto-
cols with respect to the time duration between the
collection of sample aliquots, subject to the ap-
proval of the Director). However, a minimum of
one grab sample may be taken for storm water
discharges from holding ponds or other impound-
ments with a retention period greater than 24
hours. For a flow-weighted composite sample,
only one analysis of the composite of aliquots is
required. For storm water discharge samples taken
from discharges associated with industrial activi-
ties, quantitative data must be reported for the
grab sample taken during the first thirty minutes
(or as soon thereafter as practicable) of the dis-
charge for all pollutants specified in
§ 122.26(c)(l). For all storm water permit appli-
cants taking flow-weighted composites, quan-
titative data must be reported for all pollutants
specified in § 122.26 except pH, temperature, cya-
nide, total phenols, residual chlorine, oil and
grease, fecal coliform, and fecal streptococcus.
The Director may allow or establish appropriate
site-specific sampling procedures or requirements,
including sampling locations, the season in which
the sampling takes place, the minimum duration
between the previous measurable storm event and
the storm event sampled, the minimum or maxi-
mum level of precipitation required for an appro-
priate storm event, the form of precipitation sam-
pled (snow melt or rain fall), protocols for collect-
ing samples under 40 CFR part 136, and addi-
tional time for submitting data on a case-by-case
basis. An applicant is expected to "know or have
reason to believe" that a pollutant is present in an
effluent based on an evaluation of the expected
use, production, or storage of the pollutant, or on
any previous analyses for the pollutant. (For exam-
ple, any pesticide manufactured by a facility may
be expected to be present in contaminated storm
water runoff from the facility.)
(i)(A) Every applicant must report quantitative
data for every outfall for the following pollutants:
Biochemial Oxygen Demand (BODs)
Chemical Oxygen Demand
Total Organic Carbon
Total Suspended Solids
Ammonia (as N)
Temperature (both winter and summer)
PH
(B) The Director may waive the reporting re-
quirements for individual point sources or for a
particular industry category for one or more of the
pollutants listed in paragraph (g)(7)(i)(A) of this
section if the applicant has demonstrated that such
a waiver is appropriate because information ade-
quate to support issuance of a permit can be ob-
tained with less stringent requirements.
(ii) Each applicant with processes in one or
more primary industry category (see appendix A
to part 122) contributing to a discharge must re-
port quantitative data for the following pollutants
in each outfall containing process wastewater:
(A) The organic toxic pollutants in the fractions
designated in table I of appendix D of this part for
the applicant's industrial category or categories
12
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§122.21
unless the applicant qualifies as a small business
under paragraph (g)(8) of this section. Table II of
appendix D of this part lists the organic toxic pol-
lutants in each fraction. The fractions result from
the sample preparation required by the analytical
procedure which uses gas chromotography/mass
spectrometry. A determination that an applicant
falls within a particular industrial category for the
purposes of selecting fractions for testing is not
conclusive as to the applicant's inclusion in that
category for any other purposes. [See Notes 2, 3,
and 4 of this section.]
(B) The pollutants listed in table III of appendix
D of this part (the toxic metals, cyanide, and total
phenols).
(iii)(A) Each applicant must indicate whether it
knows or has reason to believe that any of the pol-
lutants in table IV of appendix D (certain conven-
tional and nonconventional pollutants) is dis-
charged from each outfall. If an applicable effluent
limitations guideline either directly limits the pol-
lutant or, by its express terms, indirectly limits the
pollutant through limitations on an indicator, the
applicant must report quantitative data. For every
pollutant discharged which is not so limited in an
effluent limitations guideline, the applicant must
either report quantitative data or briefly describe
the reasons the pollutant is expected to be dis-
charged.
(B) Each applicant must indicate whether it
knows or has reason to believe that any of the pol-
lutants listed in table II or table III of appendix D
(the toxic pollutants and total phenols) for which
quantitative data are not otherwise required under
paragraph (g)(7)(ii) of this section, is discharged
from each outfall. For every pollutant expected to
be discharged in concentrations of 10 ppb or
greater the applicant must report quantitative data.
For acrolein, acrylonitrile, 2,4 dinitrophenol, and
2-methyl-4,6 dinitrophenol, where any of these
four pollutants are expected to be discharged in
concentrations of 100 ppb or greater the applicant
must report quantitative data. For every pollutant
expected to be discharged in concentrations less
than 10 ppb, or in the case of acrolein, acrylo-
nitrile, 2,4 dinitrophenol, and 2-methyl-4,6
dinitrophenol, in concentrations less than 100 ppb,
the applicant must either submit quantitative data
or briefly describe the reasons the pollutant is ex-
pected to be discharged. An applicant qualifying
as a small business under paragraph (g)(8) of this
section is not required to analyze for pollutants
listed in table II of appendix D (the organic toxic
pollutants).
(iv) Each applicant must indicate whether it
knows or has reason to believe that any of the pol-
lutants in table V of appendix D of this part (cer-
tain hazardous substances and asbestos) are dis-
charged from each outfall. For every pollutant ex-
pected to be discharged, the applicant must briefly
describe the reasons the pollutant is expected to be
discharged, and report any quantitative data it has
for any pollutant.
(v) Each applicant must report qualitative data,
generated using a screening procedure not cali-
brated with analytical standards, for 2,3,7,8-
tetrachlorodibenzo-p-dioxin (TCDD) if it:
(A) Uses or manufactures 2,4,5-
trichlorophenoxy acetic acid (2,4,5,-T); 2-(2,4,5-
trichlorophenoxy) propanoic acid (Silvex, 2,4,5,-
TP); 2-(2,4,5-trichlorophenoxy) ethyl, 2,2-
dichloropropionate (Erbon); O,O-dimethyl O-
(2,4,5-trichlorophenyl) phosphorothioate (Ronnel);
2,4,5-trichlorophenol (TCP); or hexachlorophene
(HCP); or
(B) Knows or has reason to believe that TCDD
is or may be present in an effluent.
(8) Small business exemption. An applicant
which qualifies as a small business under one of
the following criteria is exempt from the require-
ments in paragraph (g)(7)(ii)(A) or (g)(7)(iii)(A) of
this section to submit quantitative data for the pol-
lutants listed in table II of appendix D of this part
(the organic toxic pollutants):
(i) For coal mines, a probable total annual pro-
duction of less than 100,000 tons per year.
(ii) For all other applicants, gross total annual
sales averaging less than $100,000 per year (in
second quarter 1980 dollars).
(9) Used or manufactured toxics. A listing of
any toxic pollutant which the applicant currently
uses or manufactures as an intermediate or final
product or byproduct. The Director may waive or
modify this requirement for any applicant if the
applicant demonstrates that it would be unduly
burdensome to identify each toxic pollutant and
the Director has adequate information to issue the
permit.
(10) [Reserved]
(11) Biological toxicity tests. An identification
of any biological toxicity tests which the applicant
knows or has reason to believe have been made
within the last 3 years on any of the applicant's
discharges or on a receiving water in relation to
a discharge.
(12) Contract analyses. If a contract laboratory
or consulting firm performed any of the analyses
required by paragraph (g)(7) of this section, the
identity of each laboratory or firm and the analy-
ses performed.
(13) Additional information. In addition to the
information reported on the application form, ap-
plicants shall provide to the Director, at his or her
request, such other information as the Director
may reasonably require to assess the discharges of
the facility and to determine whether to issue an
NPDES permit. The additional information may
include additional quantitative data and bioassays
13
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§122.21
to assess the relative toxicity of discharges to
aquatic life and requirements to determine the
cause of the toxicity.
(h) Application requirements for manufacturing,
commercial, mining and silvicultural facilities
which discharge only non-process wastewater. Ex-
cept for stormwater discharges, all manufacturing,
commercial, mining and silvicultural dischargers
applying for NPDES permits which discharge only
non-process wastewater not regulated by an efflu-
ent limitations guideline or new source perform-
ance standard shall provide the following informa-
tion to the Director, using application forms pro-
vided by the Director:
(1) Outfall location. Outfall number, latitude
and longitude to the nearest 15 seconds, and the
name of the receiving water.
(2) Discharge date (for new dischargers). Date
of expected commencement of discharge.
(3) Type of waste. An identification of the gen-
eral type of waste discharged, or expected to be
discharged upon commencement of operations, in-
cluding sanitary wastes, restaurant or cafeteria
wastes, or noncontact cooling water. An identifica-
tion of cooling water additives (if any) that are
used or expected to be used upon commencement
of operations, along with their composition if ex-
isting composition is available.
(4) Effluent characteristics, (i) Quantitative data
for the pollutants or parameters listed below, un-
less testing is waived by the Director. The quan-
titative data may be data collected over the past
365 days, if they remain representative of current
operations, and must include maximum daily
value, average daily value, and number of meas-
urements taken. The applicant must collect and
analyze samples in accordance with 40 CFR part
136. Grab samples must be used for pH, tempera-
ture, oil and grease, total residual chlorine, and
fecal coliform. For all other pollutants, 24-hour
composite samples must be used. New dischargers
must include estimates for the pollutants or param-
eters listed below instead of actual sampling data,
along with the source of each estimate. All levels
must be reported or estimated as concentration and
as total mass, except for flow, pH, and tempera-
ture.
(A) Biochemical Oxygen Demand (BODs).
(B) Total Suspended Solids (TSS).
(C) Fecal Coliform (if believed present or if
sanitary waste is or will be discharged).
(D) Total Residual Chlorine (if chlorine is
used).
(E) Oil and Grease.
(F) Chemical Oxygen Demand (COD) (if non-
contact cooling water is or will be discharged).
(G) Total Organic Carbon (TOC) (if non-contact
cooling water is or will be discharged).
(H) Ammonia (as N).
(I) Discharge Flow.
(J) pH.
(K) Temperature (Winter and Summer).
(ii) The Director may waive the testing and re-
porting requirements for any of the pollutants or
flow listed in paragraph (h)(4)(i) of this section if
the applicant submits a request for such a waiver
before or with his application which demonstrates
that information adequate to support issuance of a
permit can be obtained through less stringent re-
quirements.
(iii) If the applicant is a new discharger, he
must complete and submit Item IV of Form 2e
(see § 122.21(h)(4)) by providing quantitative data
in accordance with that section no later than two
years after commencement of discharge. However,
the applicant need not complete those portions of
Item IV requiring tests which he has already per-
formed and reported under the discharge monitor-
ing requirements of his NPDES permit.
(iv) The requirements of parts i and iii of this
section that an applicant must provide quantitative
data or estimates of certain pollutants do not apply
to pollutants present in a discharge solely as a re-
sult of their presence in intake water. However, an
applicant must report such pollutants as present.
Net credit may be provided for the presence of
pollutants in intake water if the requirements of
§ 122.45(g) are met.
(5) Flow. A description of the frequency of flow
and duration of any seasonal or intermittent dis-
charge (except for stormwater runoff, leaks, or
spills).
(6) Treatment system. A brief description of any
system used or to be used.
(7) Optional information. Any additional infor-
mation the applicant wishes to be considered, such
as influent data for the purpose of obtaining ' 'net''
credits pursuant to § 122.45(g).
(8) Certification. Signature of certifying official
under § 122.22.
(i) Application requirements for new and exist-
ing concentrated animal feeding operations and
aquatic animal production facilities. New and ex-
isting concentrated animal feeding operations (de-
fined in § 122.23) and concentrated aquatic animal
production facilities (defined in § 122.24) shall
provide the following information to the Director,
using the application form provided by the Direc-
tor:
(1) For concentrated animal feeding operations:
(i) The type and number of animals in open
confinement and housed under roof.
(ii) The number of acres used for confinement
feeding.
(iii) The design basis for the runoff diversion
and control system, if one exists, including the
number of acres of contributing drainage, the stor-
age capacity, and the design safety factor.
14
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§122.21
(2) For concentrated aquatic animal production
facilities:
(i) The maximum daily and average monthly
flow from each outfall.
(ii) The number of ponds, raceways, and similar
structures.
(iii) The name of the receiving water and the
source of intake water.
(iv) For each species of aquatic animals, the
total yearly and maximum harvestable weight.
(v) The calendar month of maximum feeding
and the total mass of food fed during that month.
(j) Application requirements for new and exist-
ing POTWs. (1) The following POTWs shall pro-
vide the results of valid whole effluent biological
toxicity testing to the Director:
(i) All POTWs with design influent flows equal
to or greater than one million gallons per day;
(ii) All POTWs with approved pretreatment pro-
grams or POTWs required to develop a
pretreatment program;
(2) In addition to the POTWs listed in para-
graph (j)(l) °f this section, the Director may re-
quire other POTWs to submit the results of tox-
icity tests with their permit applications, based on
consideration of the following factors:
(i) The variability of the pollutants or pollutant
parameters in the POTW effluent (based on chem-
ical-specific information, the type of treatment fa-
cility, and types of industrial contributors);
(ii) The dilution of the effluent in the receiving
water (ratio of effluent flow to receiving stream
flow);
(iii) Existing controls on point or nonpoint
sources, including total maximum daily load cal-
culations for the waterbody segment and the rel-
ative contribution of the POTW;
(iv) Receiving stream characteristics, including
possible or known water quality impairment, and
whether the POTW discharges to a coastal water,
one of the Great Lakes, or a water designated as
an outstanding natural resource; or
(v) Other considerations (including but not lim-
ited to the history of toxic impact and compliance
problems at the POTW), which the Director deter-
mines could cause or contribute to adverse water
quality impacts.
(3) For POTWs required under paragraph (j)(l)
or (j)(2) of this section to conduct toxicity testing,
POTWs shall use EPA's methods or other estab-
lished protocols which are scientifically defensible
and sufficiently sensitive to detect aquatic toxicity.
Such testing must have been conducted since the
last NPDES permit reissuance or permit modifica-
tion under 40 CFR 122.62(a), whichever occurred
later.
(4) All POTWs with approved pretreatment pro-
grams shall provide the following information to
the Director: a written technical evaluation of the
need to revise local limits under 40 CFR
403.5(c)(l).
(k) Application requirements for new sources
and new discharges. New manufacturing, commer-
cial, mining and silvicultural dischargers applying
for NPDES permits (except for new discharges of
facilities subject to the requirements of paragraph
(h) of this section or new discharges of storm
water associated with industrial activity which are
subject to the requirements of § 122.26(c)(l) and
this section (except as provided by
§ 122.26(c)(l)(ii)) shall provide the following in-
formation to the Director, using the application
forms provided by the Director:
(1) Expected outfall location. The latitude and
longitude to the nearest 15 seconds and the name
of the receiving water.
(2) Discharge dates. The expected date of com-
mencement of discharge.
(3) Flows, sources of pollution, and treatment
technologies—(i) Expected treatment of
wastewater. Description of the treatment that the
wastewater will receive, along with all operations
contributing wastewater to the effluent, average
flow contributed by each operation, and the ulti-
mate disposal of any solid or liquid wastes not
discharged.
(ii) Line drawing. A line drawing of the water
flow through the facility with a water balance as
described in § 122.2 l(g)(2).
(iii) Intermittent flows. If any of the expected
discharges will be intermittent or seasonal, a de-
scription of the frequency, duration and maximum
daily flow rate of each discharge occurrence (ex-
cept for stormwater runoff, spillage, or leaks).
(4) Production. If a new source performance
standard promulgated under section 306 of CWA
or an effluent limitation guideline applies to the
applicant and is expressed in terms of production
(or other measure of operation), a reasonable
measure of the applicant's expected actual produc-
tion reported in the units used in the applicable ef-
fluent guideline or new source performance stand-
ard as required by § 122.45(b)(2) for each of the
first three years. Alternative estimates may also be
submitted if production is likely to vary.
(5) Effluent characteristics. The requirements in
paragraphs (h)(4)(i), (ii), and (iii) of this section
that an applicant must provide estimates of certain
pollutants expected to be present do not apply to
pollutants present in a discharge solely as a result
of their presence in intake water; however, an ap-
plicant must report such pollutants as present. Net
credits may be provided for the presence of pollut-
ants in intake water if the requirements of
§ 122.45(g) are met. All levels (except for dis-
charge flow, temperature, and pH) must be esti-
mated as concentration and as total mass.
15
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§122.21
(i) Each applicant must report estimated daily
maximum, daily average, and source of informa-
tion for each outfall for the following pollutants or
parameters. The Director may waive the reporting
requirements for any of these pollutants and pa-
rameters if the applicant submits a request for
such a waiver before or with his application which
demonstrates that information adequate to support
issuance of the permit can be obtained through
less stringent reporting requirements.
(A) Biochemical Oxygen Demand (BOD).
(B) Chemical Oxygen Demand (COD).
(C) Total Organic Carbon (TOC).
(D) Total Suspended Solids (TSS).
(E) Flow.
(F) Ammonia (as N).
(G) Temperature (winter and summer).
(H) PH.
(ii) Each applicant must report estimated daily
maximum, daily average, and source of informa-
tion for each outfall for the following pollutants,
if the applicant knows or has reason to believe
they will be present or if they are limited by an
effluent limitation guideline or new source per-
formance standard either directly or indirectly
through limitations on an indicator pollutant: all
pollutants in table IV of appendix D of part 122
(certain conventional and nonconventional pollut-
ants).
(iii) Each applicant must report estimated daily
maximum, daily average and source of information
for the following pollutants if he knows or has
reason to believe that they will be present in the
discharges from any outfall:
(A) The pollutants listed in table III of appendix
D (the toxic metals, in the discharge from any
outfall: Total cyanide, and total phenols);
(B) The organic toxic pollutants in table II of
appendix D (except bis (chloromethyl) ether,
dichlorofluoromethane and
trichlorofluoromethane). This requirement is
waived for applicants with expected gross sales of
less than $100,000 per year for the next three
years, and for coal mines with expected average
production of less than 100,000 tons of coal per
year.
(iv) The applicant is required to report that
2,3,7,8 Tetrachlorodibenzo-P-Dioxin (TCDD) may
be discharged if he uses or manufactures one of
the following compounds, or if he knows or has
reason to believe that TCDD will or may be
present in an effluent:
(A) 2,4,5-trichlorophenoxy acetic acid (2,4,5-T)
(CAS #93-76-5);
(B) 2-(2,4,5-trichlorophenoxy) propanoic acid
(Silvex, 2,4,5-TP) (CAS #93-72-1);
(C) 2-(2,4,5-trichlorophenoxy) ethyl 2,2-
dichloropropionate (Erbon) (CAS #136-25-4);
(D) 0,0-dimethyl 0-(2,4,5-trichlorophenyl)
phosphorothioate (Ronnel) (CAS #299-84-3);
(E) 2,4,5-trichlorophenol (TCP) (CAS #95-95-
4); or
(F) Hexachlorophene (HCP) (CAS #70-30-4);
(v) Each applicant must report any pollutants
listed in table V of appendix D (certain hazardous
substances) if he believes they will be present in
any outfall (no quantitative estimates are required
unless they are already available).
(vi) No later than two years after the com-
mencement of discharge from the proposed facil-
ity, the applicant is required to complete and sub-
mit Items V and VI of NPDES application Form
2c (see §122.21(g)). However, the applicant need
not complete those portions of Item V requiring
tests which he has already performed and reported
under the discharge monitoring requirements of his
NPDES permit.
(6) Engineering Report. Each applicant must re-
port the existence of any technical evaluation con-
cerning his wastewater treatment, along with the
name and location of similar plants of which he
has knowledge.
(7) Other information. Any optional information
the permittee wishes to have considered.
(8) Certification. Signature of certifying official
under § 122.22.
(1) Special provisions for applications from new
sources. (1) The owner or operator of any facility
which may be a new source(as defined in § 122.2)
and which is located in a State without an ap-
proved NPDES program must comply with the
provisions of this paragaraph.
(2)(i) Before beginning any on-site construction
as defined in § 122.29, the owner or operator of
any facility which may be a new source must sub-
mit information to the Regional Administrator so
that he or she can determine if the facility is a
new source. The Regional Administrator may re-
quest any additional information needed to deter-
mine whether the facility is a new source.
(ii) The Regional Administrator shall make an
initial determination whether the facility is a new
source within 30 days of receiving all necessary
information under paragraph (k)(2)(i) of this sec-
tion.
(3) The Regional Administrator shall issue a
public notice in accordance with §124.10 of the
new source determination under paragraph (k)(2)
of this section. If the Regional Administrator has
determined that the facility is a new source, the
notice shall state that the applicant must comply
with the environmental review requirements of 40
CFR 6.600 et seq.
(4) Any interested person may challenge the Re-
gional Administrator's initial new source deter-
mination by requesting an evidentiary hearing
under subpart E of part 124 within 30 days of is-
16
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§122.21
suance of the public notice of the initial deter-
mination. If all parties to the evidentiary hearing
on the determination agree, the Regional Adminis-
trator may defer the hearing until after a final per-
mit decision is made, and consolidate the hearing
on the determination with any hearing on the per-
mit.
(m) Variance requests by non-POTWs. A dis-
charger which is not a publicly owned treatment
works (POTW) may request a variance from oth-
erwise applicable effluent limitations under any of
the following statutory or regulatory provisions
within the times specified in this paragraph:
(1) Fundamentally different factors, (i) A re-
quest for a variance based on the presence of
"fundamentally different factors" from those on
which the effluent limitations guideline was based
shall be filed as follows:
(A) For a request from best practicable control
technology currently available (BPT), by the close
of the public comment period under § 124.10.
(B) For a request from best available technology
economically achievable (BAT) and/or best con-
ventional pollutant control technology (BCT), by
no later than:
(7) July 3, 1989, for a request based on an ef-
fluent limitation guideline promulgated before
February 4, 1987, to the extent July 3, 1989 is not
later than that provided under previously promul-
gated regulations; or
(2) 180 days after the date on which an effluent
limitation guideline is published in the FEDERAL
REGISTER for a request based on an effluent limi-
tation guideline promulgated on or after February
4, 1987.
(ii) The request shall explain how the require-
ments of the applicable regulatory and/or statutory
criteria have been met.
(2) Non-conventional pollutants. A request for a
variance from the BAT requirements for CWA
section 301(b)(2)(F) pollutants (commonly called
"non-conventional" pollutants) pursuant to section
301(c) of CWA because of the economic capabil-
ity of the owner or operator, or pursuant to section
301(g) of the CWA (provided however that a
§301(g) variance may only be requested for am-
monia; chlorine; color; iron; total phenols (4AAP)
(when determined by the Administrator to be a
pollutant covered by section 301(b)(2)(F)) and any
other pollutant which the Administrator lists under
section 301(g)(4) of the CWA) must be made as
follows:
(i) For those requests for a variance from an ef-
fluent limitation based upon an effluent limitation
guideline by:
(A) Submitting an initial request to the Regional
Administrator, as well as to the State Director if
applicable, stating the name of the discharger, the
permit number, the outfall number(s), the applica-
ble effluent guideline, and whether the discharger
is requesting a section 301(c) or section 301(g)
modification or both. This request must have been
filed not later than:
(7) September 25, 1978, for a pollutant which
is controlled by a BAT effluent limitation guide-
line promulgated before December 27, 1977; or
(2) 270 days after promulgation of an applicable
effluent limitation guideline for guidelines promul-
gated after December 27, 1977; and
(B) Submitting a completed request no later
than the close of the public comment period under
§124.10 demonstrating that the requirements of
§124.13 and the applicable requirements of part
125 have been met. Notwithstanding this provi-
sion, the complete application for a request under
section 301(g) shall be filed 180 days before EPA
must make a decision (unless the Regional Divi-
sion Director establishes a shorter or longer pe-
riod).
(ii) For those requests for a variance from efflu-
ent limitations not based on effluent limitation
guidelines, the request need only comply with
paragraph (m)(2)(i)(B) of this section and need not
be preceded by an initial request under paragraph
(m)(2)(i)(A) of this section.
(3)-(4) [Reserved]
(5) Water quality related effluent limitations. A
modification under section 302(b)(2) of require-
ments under section 302(a) for achieving water
quality related effluent limitations may be re-
quested no later than the close of the public com-
ment period under §124.10 on the permit from
which the modification is sought.
(6) Thermal discharges. A variance under CWA
section 316(a) for the thermal component of any
discharge must be filed with a timely application
for a permit under this section, except that if ther-
mal effluent limitations are established under
CWA section 402(a)(l) or are based on water
quality standards the request for a variance may be
filed by the close of the public comment period
under §124.10. A copy of the request as required
under 40 CFR part 125, subpart H, shall be sent
simultaneously to the appropriate State or inter-
state certifying agency as required under 40 CFR
part 125. (See § 124.65 for special procedures for
section 316(a) thermal variances.)
(n) Variance requests by POTWs. A discharger
which is a publicly owned treatment works
(POTW) may request a variance from otherwise
applicable effluent limitations under any of the
following statutory provisions as specified in this
paragraph:
(1) Discharges into marine waters. A request
for a modification under CWA section 301(h) of
requirements of CWA section 301(b)(l)(B) for
discharges into marine waters must be filed in ac-
17
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§122.21
cordance with the requirements of 40 CFR part
125, subpart G.
(2) [Reserved]
(3) Water quality based effluent limitation. A
modification under CWA section 302(b)(2) of the
requirements under section 302(a) for achieving
water quality based effluent limitations shall be re-
quested no later than the close of the public com-
ment period under §124.10 on the permit from
which the modification is sought.
(o) Expedited variance procedures and time ex-
tensions. (1) Notwithstanding the time require-
ments in paragraphs (m) and (n) of this section,
the Director may notify a permit applicant before
a draft permit is issued under § 124.6 that the draft
permit will likely contain limitations which are eli-
gible for variances. In the notice the Director may
require the applicant as a condition of consider-
ation of any potential variance request to submit
a request explaining how the requirements of part
125 applicable to the variance have been met and
may require its submission within a specified rea-
sonable time after receipt of the notice. The notice
may be sent before the permit application has been
submitted. The draft or final permit may contain
the alternative limitations which may become ef-
fective upon final grant of the variance.
(2) A discharger who cannot file a timely com-
plete request required under paragraph (m)(2)(i)(B)
or (m)(2)(ii) of this section may request an exten-
sion. The extension may be granted or denied at
the discretion of the Director. Extensions shall be
no more than 6 months in duration.
(p) Recordkeeping. Except for information re-
quired by paragraph (d)(3)(ii) of this section,
which shall be retained for a period of at least five
years from the date the application is signed (or
longer as required by 40 CFR part 503), applicants
shall keep records of all data used to complete
permit applications and any supplemental informa-
tion submitted under this section for a period of
at least 3 years from the date the application is
signed.
[Note 1: At 46 FR 2046, Jan. 8, 1981, the Environ-
mental Protection Agency suspended until further notice
§ 122.21(g)(7)(ii)(A) and the corresponding portions of
Item V-C of the NPDES application Form 2c as they
apply to coal mines. This revision continues that suspen-
sion.] !
[Note 2: At 46 FR 22585, Apr. 20, 1981, the Environ-
mental Protection Agency suspended until further notice
§ 122.21(g)(7)(ii)(A) and the corresponding portions of
Item V-C of the NPDES application Form 2c as they
apply to:
a. Testing and reporting for all four organic fractions
in the Greige Mills Subcategory of the Textile Mills in-
dustry (subpart C—Low water use processing of 40 CFR
part 410), and testing and reporting for the pesticide frac-
tion in all other subcategories of this industrial category.
b. Testing and reporting for the volatile, base/neutral
and pesticide fractions in the Base and Precious Metals
Subcategory of the Ore Mining and Dressing industry
(subpart B of 40 CFR part 440), and testing and reporting
for all four fractions in all other subcategories of this in-
dustrial category.
c. Testing and reporting for all four GC/MS fractions
in the Porcelain Enameling industry.
This revision continues that suspension.]:
[Note 3: At 46 FR 35090, July 1, 1981, the Environ-
mental Protection Agency suspended until further notice
§ 122.21(g)(7)(ii)(A) and the corresponding portions of
Item V-C of the NPDES application Form 2c as they
apply to:
a. Testing and reporting for the pesticide fraction in the
Tall Oil Rosin Subcategory (subpart D) and Rosin-Based
Derivatives Subcategory (subpart F) of the Gum and
Wood Chemicals industry (40 CFR part 454), and testing
and reporting for the pesticide and base-neutral fractions
in all other subcategories of this industrial category.
b. Testing and reporting for the pesticide fraction in the
Leather Tanning and Finishing, Paint and Ink Formula-
tion, and Photographic Supplies industrial categories.
c. Testing and reporting for the acid, base/neutral and
pesticide fractions in the Petroleum Refining industrial
category.
d. Testing and reporting for the pesticide fraction in the
Papergrade Sulfite subcategories (subparts J and U) of the
Pulp and Paper industry (40 CFR part 430); testing and
reporting for the base/neutral and pesticide fractions in the
following subcategories: Deink (subpart Q), Dissolving
Kraft (subpart F), and Paperboard from Waste Paper (sub-
part E); testing and reporting for the volatile, base/neutral
and pesticide fractions in the following subcategories:
BCT Bleached Kraft (subpart H), Semi-Chemical (sub-
parts B and C), and Nonintegrated-Fine Papers (subpart
R); and testing and reporting for the acid, base/neutral,
and pesticide fractions in the following subcategories:
Fine Bleached Kraft (subpart I), Dissolving Sulfite Pulp
(subpart K), Groundwood-Fine Papers (subpart O), Mar-
ket Bleached Kraft (subpart G), Tissue from Wastepaper
(subpart T), and Nonintegrated-Tissue Papers (subpart S).
e. Testing and reporting for the base/neutral fraction in
the Once-Through Cooling Water, Fly Ash and Bottom
Ash Transport Water process wastestreams of the Steam
Electric Power Plant industrial category.
This revision continues that suspension.]:
[48 FR 14153, Apr. 1, 1983, as amended at 49 FR 31842,
Aug. 8, 1984; 49 FR 38046, Sept. 26, 1984; 50 FR 6940,
6941, Feb. 19, 1985; 50 FR 35203, Aug. 29, 1985; 51 FR
26991, July 28, 1986; 53 FR 4158, Feb. 12, 1988; 53 FR
33007, Sept. 6, 1988; 54 FR 254, Jan. 4, 1989; 54 FR
18782, May 2, 1989; 55 FR 30128, July 24, 1990; 55 FR
48062, Nov. 16, 1990; 58 FR 9413, Feb. 19, 1993; 60 FR
17956, Apr. 7, 1995; 60 FR 33931, June 29, 1995; 60 FR
40235, Aug. 7, 1995]
EDITORIAL NOTE: The words "This revision" refer to
the document published at 48 FR 14153, Apr. 1, 1983.
EDITORIAL NOTE: The words "This revision" refer to
the document published at 48 FR 14153, Apr. 1, 1983.
18
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§122.23
§122.22 Signatories to permit applica-
tions and reports (applicable to
State programs, see § 123.25).
(a) Applications. All permit applications shall be
signed as follows:
(1) For a corporation. By a responsible cor-
porate officer. For the purpose of this section, a
responsible corporate officer means: (i) A presi-
dent, secretary, treasurer, or vice-president of the
corporation in charge of a principal business func-
tion, or any other person who perfoms similar
policy- or decision-making functions for the cor-
poration, or (ii) the manager of one or more manu-
facturing, production, or operating facilities em-
ploying more than 250 persons or having gross an-
nual sales or expenditures exceeding $25 million
(in second-quarter 1980 dollars), if authority to
sign documents has been assigned or delegated to
the manager in accordance with corporate proce-
dures.
NOTE: EPA does not require specific assignments or
delegations of authority to responsible corporate officers
identified in § 122.22(a)(l)(i). The Agency will presume
that these responsible corporate officers have the requisite
authority to sign permit applications unless the corpora-
tion has notified the Director to the contrary. Corporate
procedures governing authority to sign permit applications
may provide for assignment or delegation to applicable
corporate positions under § 122.22(a)(l)(ii) rather than to
specific individuals.
(2) For a partnership or sole proprietorship. By
a general partner or the proprietor, respectively; or
(3) For a municipality, State, Federal, or other
public agency. By either a principal executive offi-
cer or ranking elected official. For purposes of this
section, a principal executive officer of a Federal
agency includes: (i) The chief executive officer of
the agency, or (ii) a senior executive officer hav-
ing responsibility for the overall operations of a
principal geographic unit of the agency (e.g., Re-
gional Administrators of EPA).
(b) All reports required by permits, and other
information requested by the Director shall be
signed by a person described in paragraph (a) of
this section, or by a duly authorized representative
of that person. A person is a duly authorized rep-
resentative only if:
(1) The authorization is made in writing by a
person described in paragraph (a) of this section;
(2) The authorization specifies either an individ-
ual or a position having responsibility for the
overall operation of the regulated facility or activ-
ity such as the position of plant manager, operator
of a well or a well field, superintendent, position
of equivalent responsibility, or an individual or po-
sition having overall responsibility for environ-
mental matters for the company, (A duly author-
ized representative may thus be either a named in-
dividual or any individual occupying a named po-
sition.) and,
(3) The written authorization is submitted to the
Director.
(c) Changes to authorization. If an authorization
under paragraph (b) of this section is no longer ac-
curate because a different individual or position
has responsibility for the overall operation of the
facility, a new authorization satisfying the require-
ments of paragraph (b) of this section must be
submitted to the Director prior to or together with
any reports, information, or applications to be
signed by an authorized representative.
(d) Certification. Any person signing a docu-
ment under paragraph (a) or (b) of this section
shall make the following certification:
I certify under penalty of law that this document and
all attachments were prepared under my direction or su-
pervision in accordance with a system designed to assure
that qualified personnel properly gather and evaluate the
information submitted. Based on my inquiry of the person
or persons who manage the system, or those persons di-
rectly responsible for gathering the information, the infor-
mation submitted is, to the best of my knowledge and be-
lief, true, accurate, and complete. I am aware that there
are significant penalties for submitting false information,
including the possibility of fine and imprisonment for
knowing violations.
(Clean Water Act (33 U.S.C. 1251 et seq), Safe Drinking
Water Act (42 U.S.C. 300f et seq.), Clean Air Act (42
U.S.C. 7401 et seq.\ Resource Conservation and Recov-
ery Act (42 U.S.C. 6901 et seq.))
[48 FR 14153, Apr. 1, 1983, as amended at 48 FR 39619,
Sept. 1, 1983; 49 FR 38047, Sept. 29, 1984; 50 FR 6941,
Feb. 19, 1985; 55 FR 48063, Nov. 16, 1990]
§122.23 Concentrated animal feeding
operations (applicable to State
NPDES programs, see § 123.25).
(a) Permit requirement. Concentrated animal
feeding operations are point sources subject to the
NPDES permit program.
(b) Definitions. (1) Animal feeding operation
means a lot or facility (other than an aquatic ani-
mal production facility) where the following con-
ditions are met:
(i) Animals (other than aquatic animals) have
been, are, or will be stabled or confined and fed
or maintained for a total of 45 days or more in
any 12-month period, and
(ii) Crops, vegetation forage growth, or post-
harvest residues are not sustained in the normal
growing season over any portion of the lot or fa-
cility.
(2) Two or more animal feeding operations
under common ownership are considered, for the
purposes of these regulations, to be a single ani-
mal feeding operation if they adjoin each other or
if they use a common area or system for the dis-
posal of wastes.
19
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§122.24
(3) Concentrated animal feeding operation
means an "animal feeding operation" which
meets the criteria in appendix B of this part, or
which the Director designates under paragraph (c)
of this section.
(c) Case-by-case designation of concentrated
animal feeding operations. (1) The Director may
designate any animal feeding operation as a con-
centrated animal feeding operation upon determin-
ing that it is a significant contributor of pollution
to the waters of the United States. In making this
designation the Director shall consider the follow-
ing factors:
(i) The size of the animal feeding operation and
the amount of wastes reaching waters of the Unit-
ed States;
(ii) The location of the animal feeding operation
relative to waters of the United States;
(iii) The means of conveyance of animal wastes
and process waste waters into waters of the United
States;
(iv) The slope, vegetation, rainfall, and other
factors affecting the likelihood or frequency of
discharge of animal wastes and process waste wa-
ters into waters of the United States; and
(v) Other relevant factors.
(2) No animal feeding operation with less than
the numbers of animals set forth in appendix B of
this part shall be designated as a concentrated ani-
mal feeding operation unless:
(i) Pollutants are discharged into waters of the
United States through a manmade ditch, flushing
system, or other similar manmade device; or
(ii) Pollutants are discharged directly into waters
of the United States which originate outside of the
facility and pass over, across, or through the facil-
ity or otherwise come into direct contact with the
animals confined in the operation.
(3) A permit application shall not be required
from a concentrated animal feeding operation des-
ignated under this paragraph until the Director has
conducted an on-site inspection of the operation
and determined that the operation should and
could be regulated under the permit program.
§122.24 Concentrated aquatic animal
production facilities (applicable to
State NPDES programs, see
§123.25).
(a) Permit requirement. Concentrated aquatic
animal production facilities, as defined in this sec-
tion, are point sources subject to the NPDES per-
mit program.
(b) Defintion. Concentrated aquatic animal pro-
duction facility means a hatchery, fish farm, or
other facility which meets the criteria in appendix
C of this part, or which the Director designates
under paragraph (c) of this section.
(c) Case-by-case designation of concentrated
aquatic animal production facilities. (1) The Di-
rector may designate any warm or cold water
aquatic animal production facility as a con-
centrated aquatic animal production facility upon
determining that it is a significant contributor of
pollution to waters of the United States. In making
this designation the Director shall consider the fol-
lowing factors:
(i) The location and quality of the receiving wa-
ters of the United States;
(ii) The holding, feeding, and production capac-
ities of the facility;
(iii) The quantity and nature of the pollutants
reaching waters of the United States; and
(iv) Other relevant factors.
(2) A permit application shall not be required
from a concentrated aquatic animal production fa-
cility designated under this paragraph until the Di-
rector has conducted on-site inspection of the fa-
cility and has determined that the facility should
and could be regulated under the permit program.
§122.25 Aquaculture projects (applica-
ble to State NPDES programs, see
§123.25).
(a) Permit requirement. Discharges into aqua-
culture projects, as defined in this section, are sub-
ject to the NPDES permit program through section
318 of CWA, and in accordance with 40 CFR part
125, subpart B.
(b) Definitions. (1) Aquaculture project means a
defined managed water area which uses discharges
of pollutants into that designated area for the
maintenance or production of harvestable fresh-
water, estuarine, or marine plants or animals.
(2) Designated project area means the portions
of the waters of the United States within which
the permittee or permit applicant plans to confine
the cultivated species, using a method or plan or
operation (including, but not limited to, physical
confinement) which, on the basis of reliable sci-
entific evidence, is expected to ensure that specific
individual organisms comprising an aquaculture
crop will enjoy increased growth attributable to
the discharge of pollutants, and be harvested with-
in a defined geographic area.
§122.26 Storm water discharges (appli-
cable to State NPDES programs, see
§123.25).
(a) Permit requirement. (1) Prior to October 1,
1994, discharges composed entirely of storm water
shall not be required to obtain a NPDES permit
except:
(i) A discharge with respect to which a permit
has been issued prior to February 4, 1987;
(ii) A discharge associated with industrial activ-
ity (see § 122.26(a)(4));
20
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§122.26
(iii) A discharge from a large municipal sepa-
rate storm sewer system;
(iv) A discharge from a medium municipal sep-
arate storm sewer system;
(v) A discharge which the Director, or in States
with approved NPDES programs, either the Direc-
tor or the EPA Regional Administrator, determines
to contribute to a violation of a water quality
standard or is a significant contributor of pollut-
ants to waters of the United States. This designa-
tion may include a discharge from any conveyance
or system of conveyances used for collecting and
conveying storm water runoff or a system of dis-
charges from municipal separate storm sewers, ex-
cept for those discharges from conveyances which
do not require a permit under paragraph (a)(2) of
this section or agricultural storm water runoff
which is exempted from the definition of point
source at § 122.2.
The Director may designate discharges from mu-
nicipal separate storm sewers on a system-wide or
jurisdiction-wide basis. In making this determina-
tion the Director may consider the following fac-
tors:
(A) The location of the discharge with respect
to waters of the United States as defined at 40
CFR 122.2.
(B) The size of the discharge;
(C) The quantity and nature of the pollutants
discharged to waters of the United States; and
(D) Other relevant factors.
(2) The Director may not require a permit for
discharges of storm water runoff from mining op-
erations or oil and gas exploration, production,
processing or treatment operations or transmission
facilities, composed entirely of flows which are
from conveyances or systems of conveyances (in-
cluding but not limited to pipes, conduits, ditches,
and channels) used for collecting and conveying
precipitation runoff and which are not contami-
nated by contact with or that has not come into
contact with, any overburden, raw material, inter-
mediate products, finished product, byproduct or
waste products located on the site of such oper-
ations.
(3) Large and medium municipal separate storm
sewer systems, (i) Permits must be obtained for all
discharges from large and medium municipal sepa-
rate storm sewer systems.
(ii) The Director may either issue one system-
wide permit covering all discharges from munici-
pal separate storm sewers within a large or me-
dium municipal storm sewer system or issue dis-
tinct permits for appropriate categories of dis-
charges within a large or medium municipal sepa-
rate storm sewer system including, but not limited
to: all discharges owned or operated by the same
municipality; located within the same jurisdiction;
all discharges within a system that discharge to the
same watershed; discharges within a system that
are similar in nature; or for individual discharges
from municipal separate storm sewers within the
system.
(iii) The operator of a discharge from a munici-
pal separate storm sewer which is part of a large
or medium municipal separate storm sewer system
must either:
(A) Participate in a permit application (to be a
permittee or a co-permittee) with one or more
other operators of discharges from the large or
medium municipal storm sewer system which cov-
ers all, or a portion of all, discharges from the mu-
nicipal separate storm sewer system;
(B) Submit a distinct permit application which
only covers discharges from the municipal sepa-
rate storm sewers for which the operator is respon-
sible; or
(C) A regional authority may be responsible for
submitting a permit application under the follow-
ing guidelines:
(7) The regional authority together with co-ap-
plicants shall have authority over a storm water
management program that is in existence, or shall
be in existence at the time part 1 of the applica-
tion is due;
(2) The permit applicant or co-applicants shall
establish their ability to make a timely submission
of part 1 and part 2 of the municipal application;
(3) Each of the operators of municipal separate
storm sewers within the systems described in para-
graphs (b)(4) (i), (ii), and (iii) or (b)(7) (i), (ii),
and (iii) of this section, that are under the purview
of the designated regional authority, shall comply
with the application requirements of paragraph (d)
of this section.
(iv) One permit application may be submitted
for all or a portion of all municipal separate storm
sewers within adjacent or interconnected large or
medium municipal separate storm sewer systems.
The Director may issue one system-wide permit
covering all, or a portion of all municipal separate
storm sewers in adjacent or interconnected large or
medium municipal separate storm sewer systems.
(v) Permits for all or a portion of all discharges
from large or medium municipal separate storm
sewer systems that are issued on a system-wide,
jurisdiction-wide, watershed or other basis may
specify different conditions relating to different
discharges covered by the permit, including dif-
ferent management programs for different drainage
areas which contribute storm water to the system.
(vi) Co-permittees need only comply with per-
mit conditions relating to discharges from the mu-
nicipal separate storm sewers for which they are
operators.
(4) Discharges through large and medium mu-
nicipal separate storm sewer systems. In addition
to meeting the requirements of paragraph (c) of
21
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§122.26
this section, an operator of a storm water dis-
charge associated with industrial activity which
discharges through a large or medium municipal
separate storm sewer system shall submit, to the
operator of the municipal separate storm sewer
system receiving the discharge no later than May
15, 1991, or 180 days prior to commencing such
discharge: the name of the facility; a contact per-
son and phone number; the location of the dis-
charge; a description, including Standard Industrial
Classification, which best reflects the principal
products or services provided by each facility; and
any existing NPDES permit number.
(5) Other municipal separate storm sewers. The
Director may issue permits for municipal separate
storm sewers that are designated under paragraph
(a)(l)(v) of this section on a system-wide basis,
jurisdiction-wide basis, watershed basis or other
appropriate basis, or may issue permits for individ-
ual discharges.
(6) Non-municipal separate storm sewers. For
storm water discharges associated with industrial
activity from point sources which discharge
through a non-municipal or non-publicly owned
separate storm sewer system, the Director, in his
discretion, may issue: a single NPDES permit,
with each discharger a co-permittee to a permit is-
sued to the operator of the portion of the system
that discharges into waters of the United States;
or, individual permits to each discharger of storm
water associated with industrial activity through
the non-municipal conveyance system.
(i) All storm water discharges associated with
industrial activity that discharge through a storm
water discharge system that is not a municipal
separate storm sewer must be covered by an indi-
vidual permit, or a permit issued to the operator
of the portion of the system that discharges to wa-
ters of the United States, with each discharger to
the non-municipal conveyance a co-permittee to
that permit.
(ii) Where there is more than one operator of a
single system of such conveyances, all operators
of storm water discharges associated with indus-
trial activity must submit applications.
(iii) Any permit covering more than one opera-
tor shall identify the effluent limitations, or other
permit conditions, if any, that apply to each opera-
tor.
(7) Combined sewer systems. Conveyances that
discharge storm water runoff combined with mu-
nicipal sewage are point sources that must obtain
NPDES permits in accordance with the procedures
of §122.21 and are not subject to the provisions
of this section.
(8) Whether a discharge from a municipal sepa-
rate storm sewer is or is not subject to regulation
under this section shall have no bearing on wheth-
er the owner or operator of the discharge is eligi-
ble for funding under title II, title III or title VI
of the Clean Water Act. See 40 CFR part 35, sub-
part I, appendix A(b)H.2.j.
(9) On and after October 1, 1994, dischargers
composed entirely of storm water, that are not oth-
erwise already required by paragraph (a)(l) of this
section to obtain a permit, shall be required to
apply for and obtain a permit according to the ap-
plication requirements in paragraph (g) of this sec-
tion. The Director may not require a permit for
discharges of storm water as provided in para-
graph (a)(2) of this section or agricultural storm
water runoff which is exempted from the defini-
tion of point source at §§ 122.2 and 122.3.
(b) Definitions. (1) Co-permittee means a per-
mittee to a NPDES permit that is only responsible
for permit conditions relating to the discharge for
which it is operator.
(2) Illicit discharge means any discharge to a
municipal separate storm sewer that is not com-
posed entirely of storm water except discharges
pursuant to a NPDES permit (other than the
NPDES permit for discharges from the municipal
separate storm sewer) and discharges resulting
from fire fighting activities.
(3) Incorporated place means the District of
Columbia, or a city, town, township, or village
that is incorporated under the laws of the State in
which it is located.
(4) Large municipal separate storm sewer sys-
tem means all municipal separate storm sewers
that are either:
(i) Located in an incorporated place with a pop-
ulation of 250,000 or more as determined by the
latest Decennial Census by the Bureau of Census
(appendix F); or
(ii) Located in the counties listed in appendix H,
except municipal separate storm sewers that are
located in the incorporated places, townships or
towns within such counties; or
(iii) Owned or operated by a municipality other
than those described in paragraph (b)(4) (i) or (ii)
of this section and that are designated by the Di-
rector as part of the large or medium municipal
separate storm sewer system due to the inter-
relationship between the discharges of the des-
ignated storm sewer and the discharges from mu-
nicipal separate storm sewers described under
paragraph (b)(4) (i) or (ii) of this section. In mak-
ing this determination the Director may consider
the following factors:
(A) Physical interconnections between the mu-
nicipal separate storm sewers;
(B) The location of discharges from the des-
ignated municipal separate storm sewer relative to
discharges from municipal separate storm sewers
described in paragraph (b)(4)(i) of this section;
(C) The quantity and nature of pollutants dis-
charged to waters of the United States;
22
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§122.26
(D) The nature of the receiving waters; and
(E) Other relevant factors; or
(iv) The Director may, upon petition, designate
as a large municipal separate storm sewer system,
municipal separate storm sewers located within the
boundaries of a region defined by a storm water
management regional authority based on a juris-
dictional, watershed, or other appropriate basis that
includes one or more of the systems described in
paragraph (b)(4) (i), (ii), (iii) of this section.
(5) Major municipal separate storm sewer
outfall (or "major outfall") means a municipal
separate storm sewer outfall that discharges from
a single pipe with an inside diameter of 36 inches
or more or its equivalent (discharge from a single
conveyance other than circular pipe which is
associated with a drainage area of more than 50
acres); or for municipal separate storm sewers that
receive storm water from lands zoned for indus-
trial activity (based on comprehensive zoning
plans or the equivalent), an outfall that discharges
from a single pipe with an inside diameter of 12
inches or more or from its equivalent (discharge
from other than a circular pipe associated with a
drainage area of 2 acres or more).
(6) Major outfall means a major municipal sep-
arate storm sewer outfall.
(7) Medium municipal separate storm sewer
system means all municipal separate storm sewers
that are either:
(i) Located in an incorporated place with a pop-
ulation of 100,000 or more but less than 250,000,
as determined by the latest Decennial Census by
the Bureau of Census (appendix G); or
(ii) Located in the counties listed in appendix I,
except municipal separate storm sewers that are
located in the incorporated places, townships or
towns within such counties; or
(iii) Owned or operated by a municipality other
than those described in paragraph (b)(4) (i) or (ii)
of this section and that are designated by the Di-
rector as part of the large or medium municipal
separate storm sewer system due to the inter-
relationship between the discharges of the des-
ignated storm sewer and the discharges from mu-
nicipal separate storm sewers described under
paragraph (b)(4) (i) or (ii) of this section. In mak-
ing this determination the Director may consider
the following factors:
(A) Physical interconnections between the mu-
nicipal separate storm sewers;
(B) The location of discharges from the des-
ignated municipal separate storm sewer relative to
discharges from municipal separate storm sewers
described in paragraph (b)(7)(i) of this section;
(C) The quantity and nature of pollutants dis-
charged to waters of the United States;
(D) The nature of the receiving waters; or
(E) Other relevant factors; or
(iv) The Director may, upon petition, designate
as a medium municipal separate storm sewer sys-
tem, municipal separate storm sewers located with-
in the boundaries of a region defined by a storm
water management regional authority based on a
jurisdictional, watershed, or other appropriate basis
that includes one or more of the systems described
in paragraphs (b)(7) (i), (ii), (iii) of this section.
(8) Municipal separate storm sewer means a
conveyance or system of conveyances (including
roads with drainage systems, municipal streets,
catch basins, curbs, gutters, ditches, man-made
channels, or storm drains):
(i) Owned or operated by a State, city, town,
borough, county, parish, district, association, or
other public body (created by or pursuant to State
law) having jurisdiction over disposal of sewage,
industrial wastes, storm water, or other wastes, in-
cluding special districts under State law such as a
sewer district, flood control district or drainage
district, or similar entity, or an Indian tribe or an
authorized Indian tribal organization, or a des-
ignated and approved management agency under
section 208 of the CWA that discharges to waters
of the United States;
(ii) Designed or used for collecting or convey-
ing storm water;
(iii) Which is not a combined sewer; and
(iv) Which is not part of a Publicly Owned
Treatment Works (POTW) as defined at 40 CFR
122.2.
(9) Outfall means a point source as defined by
40 CFR 122.2 at the point where a municipal sep-
arate storm sewer discharges to waters of the Unit-
ed States and does not include open conveyances
connecting two municipal separate storm sewers,
or pipes, tunnels or other conveyances which con-
nect segments of the same stream or other waters
of the United States and are used to convey waters
of the United States.
(10) Overburden means any material of any na-
ture, consolidated or unconsolidated, that overlies
a mineral deposit, excluding topsoil or similar nat-
urally-occurring surface materials that are not dis-
turbed by mining operations.
(11) Runoff coefficient means the fraction of
total rainfall that will appear at a conveyance as
runoff.
(12) Significant materials includes, but is not
limited to: raw materials; fuels; materials such as
solvents, detergents, and plastic pellets; finished
materials such as metallic products; raw materials
used in food processing or production; hazardous
substances designated under section 101(14) of
CERCLA; any chemical the facility is required to
report pursuant to section 313 of title III of
SARA; fertilizers; pesticides; and waste products
such as ashes, slag and sludge that have the poten-
tial to be released with storm water discharges.
23
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§122.26
(13) Storm water means storm water runoff,
snow melt runoff, and surface runoff and drainage.
(14) Storm water discharge associated with in-
dustrial activity means the discharge from any
conveyance which is used for collecting and con-
veying storm water and which is directly related
to manufacturing, processing or raw materials stor-
age areas at an industrial plant. The term does not
include discharges from facilities or activities ex-
cluded from the NPDES program under 40 CFR
part 122. For the categories of industries identified
in paragraphs (b)(14) (i) through (x) of this sec-
tion, the term includes, but is not limited to, storm
water discharges from industrial plant yards; im-
mediate access roads and rail lines used or trav-
eled by carriers of raw materials, manufactured
products, waste material, or by-products used or
created by the facility; material handling sites;
refuse sites; sites used for the application or dis-
posal of process waste waters (as defined at 40
CFR part 401); sites used for the storage and
maintenance of material handling equipment; sites
used for residual treatment, storage, or disposal;
shipping and receiving areas; manufacturing build-
ings; storage areas (including tank farms) for raw
materials, and intermediate and finished products;
and areas where industrial activity has taken place
in the past and significant materials remain and
are exposed to storm water. For the categories of
industries identified in paragraph (b)(14)(xi) of
this section, the term includes only storm water
discharges from all the areas (except access roads
and rail lines) that are listed in the previous sen-
tence where material handling equipment or activi-
ties, raw materials, intermediate products, final
products, waste materials, by-products, or indus-
trial machinery are exposed to storm water. For
the purposes of this paragraph, material handling
activities include the storage, loading and unload-
ing, transportation, or conveyance of any raw ma-
terial, intermediate product, finished product, by-
product or waste product. The term excludes areas
located on plant lands separate from the plant's in-
dustrial activities, such as office buildings and ac-
companying parking lots as long as the drainage
from the excluded areas is not mixed with storm
water drained from the above described areas. In-
dustrial facilities (including industrial facilities that
are Federally, State, or municipally owned or op-
erated that meet the description of the facilities
listed in this paragraph (b)(14)(i)-(xi) of this sec-
tion) include those facilities designated under the
provisions of paragraph (a)(l)(v) of this section.
The following categories of facilities are
considered to be engaging in "industrial activity"
for purposes of this subsection:
(i) Facilities subject to storm water effluent lim-
itations guidelines, new source performance stand-
ards, or toxic pollutant effluent standards under 40
CFR subchapter N (except facilities with toxic
pollutant effluent standards which are exempted
under category (xi) in paragraph (b)(14) of this
section);
(ii) Facilities classified as Standard Industrial
Classifications 24 (except 2434), 26 (except 265
and 267), 28 (except 283), 29, 311, 32 (except
323), 33, 3441, 373;
(iii) Facilities classified as Standard Industrial
Classifications 10 through 14 (mineral industry)
including active or inactive mining operations (ex-
cept for areas of coal mining operations no longer
meeting the definition of a reclamation area under
40 CFR 434.11(1) because the performance bond
issued to the facility by the appropriate SMCRA
authority has been released, or except for areas of
non-coal mining operations which have been re-
leased from applicable State or Federal reclama-
tion requirements after December 17, 1990) and
oil and gas exploration, production, processing, or
treatment operations, or transmission facilities that
discharge storm water contaminated by contact
with or that has come into contact with, any over-
burden, raw material, intermediate products,
finished products, byproducts or waste products lo-
cated on the site of such operations; (inactive min-
ing operations are mining sites that are not being
actively mined, but which have an identifiable
owner/operator; inactive mining sites do not in-
clude sites where mining claims are being main-
tained prior to disturbances associated with the ex-
traction, beneficiation, or processing of mined ma-
terials, nor sites where minimal activities are un-
dertaken for the sole purpose of maintaining a
mining claim);
(iv) Hazardous waste treatment, storage, or dis-
posal facilities, including those that are operating
under interim status or a permit under subtitle C
of RCRA;
(v) Landfills, land application sites, and open
dumps that receive or have received any industrial
wastes (waste that is received from any of the fa-
cilities described under this subsection) including
those that are subject to regulation under subtitle
D of RCRA;
(vi) Facilities involved in the recycling of mate-
rials, including metal scrapyards, battery reclaim-
ers, salvage yards, and automobile junkyards, in-
cluding but limited to those classified as Standard
Industrial Classification 5015 and 5093;
(vii) Steam electric power generating facilities,
including coal handling sites;
(viii) Transportation facilities classified as
Standard Industrial Classifications 40, 41, 42 (ex-
cept 4221-25), 43, 44, 45, and 5171 which have
vehicle maintenance shops, equipment cleaning
operations, or airport deicing operations. Only
those portions of the facility that are either in-
volved in vehicle maintenance (including vehicle
24
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§122.26
rehabilitation, mechanical repairs, painting, fuel-
ing, and lubrication), equipment cleaning oper-
ations, airport deicing operations, or which are
otherwise identified under paragraphs (b)(14) (i)-
(vii) or (ix)-(xi) of this section are associated with
industrial activity;
(ix) Treatment works treating domestic sewage
or any other sewage sludge or wastewater treat-
ment device or system, used in the storage treat-
ment, recycling, and reclamation of municipal or
domestic sewage, including land dedicated to the
disposal of sewage sludge that are located within
the confines of the facility, with a design flow of
1.0 mgd or more, or required to have an approved
pretreatment program under 40 CFR part 403. Not
included are farm lands, domestic gardens or lands
used for sludge management where sludge is bene-
ficially reused and which are not physically lo-
cated in the confines of the facility, or areas that
are in compliance with section 405 of the CWA;
(x) Construction activity including clearing,
grading and excavation activities except: oper-
ations that result in the disturbance of less than
five acres of total land area which are not part of
a larger common plan of development or sale;
(xi) Facilities under Standard Industrial Classi-
fications 20, 21, 22, 23, 2434, 25, 265, 267, 27,
283, 285, 30, 31 (except 311), 323, 34 (except
3441), 35, 36, 37 (except 373), 38, 39, 4221-25,
(and which are not otherwise included within cat-
egories (ii)-(x));
(15) Uncontrolled sanitary landfill means a
landill or open dump, whether in operation or
closed, that does not meet the requirements for
runon or runoff controls established pursuant to
subtitle D of the Solid Waste Disposal Act.
(c) Application requirements for storm water
discharges associated with industrial activity—(1)
Individual application. Dischargers of storm water
associated with industrial activity are required to
apply for an individual permit, apply for a permit
through a group application, or seek coverage
under a promulgated storm water general permit.
Facilities that are required to obtain an individual
permit, or any discharge of storm water which the
Director is evaluating for designation {see 40 CFR
124.52(c)) under paragraph (a)(l)(v) of this section
and is not a municipal separate storm sewer, and
which is not part of a group application described
under paragraph (c)(2) of this section, shall submit
an NPDES application in accordance with the re-
quirements of § 122.21 as modified and supple-
mented by the provisions of the remainder of this
paragraph. Applicants for discharges composed en-
tirely of storm water shall submit Form 1 and
Form 2F. Applicants for discharges composed of
storm water and non-storm water shall submit
Form 1, Form 2C, and Form 2F. Applicants for
new sources or new discharges (as defined in
§ 122.2 of this part) composed of storm water and
non-storm water shall submit Form 1, Form 2D,
and Form 2F.
(i) Except as provided in § 122.26(c)(l) (ii)-(iv),
the operator of a storm water discharge associated
with industrial activity subject to this section shall
provide:
(A) A site map showing topography (or indicat-
ing the outline of drainage areas served by the
outfall(s) covered in the application if a topo-
graphic map is unavailable) of the facility includ-
ing: each of its drainage and discharge structures;
the drainage area of each storm water outfall;
paved areas and buildings within the drainage area
of each storm water outfall, each past or present
area used for outdoor storage or disposal of sig-
nificant materials, each existing structural control
measure to reduce pollutants in storm water run-
off, materials loading and access areas, areas
where pesticides, herbicides, soil conditioners and
fertilizers are applied, each of its hazardous waste
treatment, storage or disposal facilities (including
each area not required to have a RCRA permit
which is used for accumulating hazardous waste
under 40 CFR 262.34); each well where fluids
from the facility are injected underground; springs,
and other surface water bodies which receive
storm water discharges from the facility;
(B) An estimate of the area of impervious sur-
faces (including paved areas and building roofs)
and the total area drained by each outfall (within
a mile radius of the facility) and a narrative de-
scription of the following: Significant materials
that in the three years prior to the submittal of this
application have been treated, stored or disposed
in a manner to allow exposure to storm water;
method of treatment, storage or disposal of such
materials; materials management practices em-
ployed, in the three years prior to the submittal of
this application, to minimize contact by these ma-
terials with storm water runoff; materials loading
and access areas; the location, manner and fre-
quency in which pesticides, herbicides, soil condi-
tioners and fertilizers are applied; the location and
a description of existing structural and non-struc-
tural control measures to reduce pollutants in
storm water runoff; and a description of the treat-
ment the storm water receives, including the ulti-
mate disposal of any solid or fluid wastes other
than by discharge;
(C) A certification that all outfalls that should
contain storm water discharges associated with in-
dustrial activity have been tested or evaluated for
the presence of non-storm water discharges which
are not covered by a NPDES permit; tests for such
non-storm water discharges may include smoke
tests, fluorometric dye tests, analysis of accurate
schematics, as well as other appropriate tests. The
certification shall include a description of the
25
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§122.26
method used, the date of any testing, and the on-
site drainage points that were directly observed
during a test;
(D) Existing information regarding significant
leaks or spills of toxic or hazardous pollutants at
the facility that have taken place within the three
years prior to the submittal of this application;
(E) Quantitative data based on samples collected
during storm events and collected in accordance
with § 122.21 of this part from all outfalls contain-
ing a storm water discharge associated with indus-
trial activity for the following parameters:
(7) Any pollutant limited in an effluent guide-
line to which the facility is subject;
(2) Any pollutant listed in the facility's NPDES
permit for its process wastewater (if the facility is
operating under an existing NPDES permit);
(3) Oil and grease, pH, BODS, COD, TSS, total
phosphorus, total Kjeldahl nitrogen, and nitrate
plus nitrite nitrogen;
(¥) Any information on the discharge required
under paragraph § 122.21(g)(7) (iii) and (iv) of this
part;
(5) Flow measurements or estimates of the flow
rate, and the total amount of discharge for the
storm event(s) sampled, and the method of flow
measurement or estimation; and
(6) The date and duration (in hours) of the
storm event(s) sampled, rainfall measurements or
estimates of the storm event (in inches) which
generated the sampled runoff and the duration be-
tween the storm event sampled and the end of the
previous measurable (greater than 0. 1 inch rainfall)
storm event (in hours);
(F) Operators of a discharge which is composed
entirely of storm water are exempt from the re-
quirements of § 122.21 (g)(2), (g)(3), (g)(4), (g)(5),
(g)(7)(i), (g)(7)(ii), and (g)(7)(v); and
(G) Operators of new sources or new discharges
(as defined in § 122.2 of this part) which are com-
posed in part or entirely of storm water must in-
clude estimates for the pollutants or parameters
listed in paragraph (c)(l)(i)(E) of this section in-
stead of actual sampling data, along with the
source of each estimate. Operators of new sources
or new discharges composed in part or entirely of
storm water must provide quantitative data for the
parameters listed in paragraph (c)(l)(i)(E) of this
section within two years after commencement of
discharge, unless such data has already been re-
ported under the monitoring requirements of the
NPDES permit for the discharge. Operators of a
new source or new discharge which is composed
entirely of storm water are exempt from the re-
quirements of §122.21 (k)(3)(ii), (k)(3)(iii), and
(ii) The operator of an existing or new storm
water discharge that is associated with industrial
activity solely under paragraph (b)(14)(x) of this
section, is exempt from the requirements of
§ 122.21(g) and paragraph (c)(l)(i) of this section.
Such operator shall provide a narrative description
of:
(A) The location (including a map) and the na-
ture of the construction activity;
(B) The total area of the site and the area of the
site that is expected to undergo excavation during
the life of the permit;
(C) Proposed measures, including best manage-
ment practices, to control pollutants in storm water
discharges during construction, including a brief
description of applicable State and local erosion
and sediment control requirements;
(D) Proposed measures to control pollutants in
storm water discharges that will occur after con-
struction operations have been completed, includ-
ing a brief description of applicable State or local
erosion and sediment control requirements;
(E) An estimate of the runoff coefficient of the
site and the increase in impervious area after the
construction addressed in the permit application is
completed, the nature of fill material and existing
data describing the soil or the quality of the dis-
charge; and
(F) The name of the receiving water.
(iii) The operator of an existing or new dis-
charge composed entirely of storm water from an
oil or gas exploration, production, processing, or
treatment operation, or transmission facility is not
required to submit a permit application in accord-
ance with paragraph (c)(l)(i) of this section, unless
the facility:
(A) Has had a discharge of storm water result-
ing in the discharge of a reportable quantity for
which notification is or was required pursuant to
40 CFR 117.21 or 40 CFR 302.6 at anytime since
November 16, 1987; or
(B) Has had a discharge of storm water result-
ing in the discharge of a reportable quantity for
which notification is or was required pursuant to
40 CFR 110.6 at any time since November 16,
1987; or
(C) Contributes to a violation of a water quality
standard.
(iv) The operator of an existing or new dis-
charge composed entirely of storm water from a
mining operation is not required to submit a per-
mit application unless the discharge has come into
contact with, any overburden, raw material, inter-
mediate products, finished product, byproduct or
waste products located on the site of such oper-
ations.
(v) Applicants shall provide such other informa-
tion the Director may reasonably require under
§ 122.21(g)(13) of this part to determine whether
to issue a permit and may require any facility sub-
ject to paragraph (c)(l)(ii) of this section to com-
ply with paragraph (c)(l)(i) of this section.
26
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§122.26
(2) Group application for discharges associated
with industrial activity. In lieu of individual appli-
cations or notice of intent to be covered by a gen-
eral permit for storm water discharges associated
with industrial activity, a group application may be
filed by an entity representing a group of appli-
cants (except facilities that have existing individ-
ual NPDES permits for storm water) that are part
of the same subcategory (see 40 CFR subchapter
N, part 405 to 471) or, where such grouping is in-
applicable, are sufficiently similar as to be appro-
priate for general permit coverage under § 122.28
of this part. The part 1 application shall be submit-
ted to the Office of Water Enforcement and Per-
mits, U.S. EPA, 401 M Street, SW., Washington,
DC 20460 (EN-336) for approval. Once a part 1
application is approved, group applicants are to
submit Part 2 of the group application to the Of-
fice of Water Enforcement and Permits. A group
application shall consist of:
(i) Part 1. Part 1 of a group application shall:
(A) Identify the participants in the group appli-
cation by name and location. Facilities participat-
ing in the group application shall be listed in nine
subdivisions, based on the facility location relative
to the nine precipitation zones indicated in appen-
dix E to this part.
(B) Include a narrative description summarizing
the industrial activities of participants of the group
application and explaining why the participants, as
a whole, are sufficiently similar to be a covered by
a general permit;
(C) Include a list of significant materials stored
exposed to precipitation by participants in the
group application and materials management prac-
tices employed to diminish contact by these mate-
rials with precipitation and storm water runoff;
(D) For groups of more than 1,000 members,
identify at least 100 dischargers participating in
the group application from which quantitative data
will be submitted. For groups of 100 or more
members, identify a minimum of ten percent of
the dischargers participating in the group applica-
tion from which quantitative data will be submit-
ted. For groups of between 21 and 99 members
identify a minimum of ten dischargers participat-
ing in the group application from which quan-
titative data will be submitted. For groups of 4 to
20 members, identify a minimum of 50 percent of
the dischargers participating in the group applica-
tion from which quantitative data will be submit-
ted. For groups with more than 10 members, either
a minimum of two dischargers from each precipi-
tation zone indicated in appendix E of this part in
which ten or more members of the group are lo-
cated, or one discharger from each precipitation
zone indicated in appendix E of this part in which
nine or fewer members of the group are located,
must be identified to submit quantitative data. For
groups of 4 to 10 members, at least one facility
in each precipitation zone indicated in appendix E
of this part in which members of the group are lo-
cated must be identifed to submit quantitative data.
A description of why the facilities selected to per-
form sampling and analysis are representative of
the group as a whole in terms of the information
provided in paragraphs (c)(l)(i)(B) and (c)(l)(i)(C)
of this section, shall accompany this section. Dif-
ferent factors impacting the nature of the storm
water discharges, such as the processes used and
material management, shall be represented, to the
extent feasible, in a manner roughly equivalent to
their proportion in the group.
(ii) Part 2. Part 2 of a group application shall
contain quantitative data (NPDES Form 2F), as
modified by paragraph (c)(l) of this section, so
that when part 1 and part 2 of the group applica-
tion are taken together, a complete NPDES appli-
cation (Form 1, Form 2C, and Form 2F) can be
evaluated for each discharger identified in para-
graph (c)(2)(i)(D) of this section.
(d) Application requirements for large and me-
dium municipal separate storm sewer discharges.
The operator of a discharge from a large or me-
dium municipal separate storm sewer or a munici-
pal separate storm sewer that is designated by the
Director under paragraph (a)(l)(v) of this section,
may submit a jurisdiction-wide or system-wide
permit application. Where more than one public
entity owns or operates a municipal separate storm
sewer within a geographic area (including adjacent
or interconnected municipal separate storm sewer
systems), such operators may be a coapplicant to
the same application. Permit applications for dis-
charges from large and medium municipal storm
sewers or municipal storm sewers designated
under paragraph (a)(l)(v) of this section shall in-
clude;
(1) Part 1. Part 1 of the application shall consist
of;
(i) General information. The applicants' name,
address, telephone number of contact person, own-
ership status and status as a State or local govern-
ment entity.
(ii) Legal authority. A description of existing
legal authority to control discharges to the munici-
pal separate storm sewer system. When existing
legal authority is not sufficient to meet the criteria
provided in paragraph (d)(2)(i) of this section, the
description shall list additional authorities as will
be necessary to meet the criteria and shall include
a schedule and commitment to seek such addi-
tional authority that will be needed to meet the
criteria.
(iii) Source identification. (A) A description of
the historic use of ordinances, guidance or other
controls which limited the discharge of non-storm
water discharges to any Publicly Owned Treatment
27
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§122.26
Works serving the same area as the municipal sep-
arate storm sewer system.
(B) A USGS 7.5 minute topographic map (or
equivalent topographic map with a scale between
1:10,000 and 1:24,000 if cost effective) extending
one mile beyond the service boundaries of the mu-
nicipal storm sewer system covered by the permit
application. The following information shall be
provided:
(7) The location of known municipal storm
sewer system outfalls discharging to waters of the
United States;
(2) A description of the land use activities (e.g.
divisions indicating undeveloped, residential, com-
mercial, agricultural and industrial uses) accom-
panied with estimates of population densities and
projected growth for a ten year period within the
drainage area served by the separate storm sewer.
For each land use type, an estimate of an average
runoff coefficient shall be provided;
(3) The location and a description of the activi-
ties of the facility of each currently operating or
closed municipal landfill or other treatment, stor-
age or disposal facility for municipal waste;
(¥) The location and the permit number of any
known discharge to the municipal storm sewer that
has been issued a NPDES permit;
(5) The location of major structural controls for
storm water discharge (retention basins, detention
basins, major infiltration devices, etc.); and
(6) The identification of publicly owned parks,
recreational areas, and other open lands.
(iv) Discharge characterization. (A) Monthly
mean rain and snow fall estimates (or summary of
weather bureau data) and the monthly average
number of storm events.
(B) Existing quantitative data describing the
volume and quality of discharges from the munici-
pal storm sewer, including a description of the
outfalls sampled, sampling procedures and analyt-
ical methods used.
(C) A list of water bodies that receive dis-
charges from the municipal separate storm sewer
system, including downstream segments, lakes and
estuaries, where pollutants from the system dis-
charges may accumulate and cause water degrada-
tion and a brief description of known water quality
impacts. At a minimum, the description of impacts
shall include a description of whether the water
bodies receiving such discharges have been:
(7) Assessed and reported in section 305(b) re-
ports submitted by the State, the basis for the as-
sessment (evaluated or monitored), a summary of
designated use support and attainment of Clean
Water Act (CWA) goals (fishable and swimmable
waters), and causes of nonsupport of designated
uses;
(2) Listed under section 304(l)(l)(A)(i), section
304(l)(l)(A)(ii), or section 304(1)(1)(B) of the
CWA that is not expected to meet water quality
standards or water quality goals;
(3) Listed in State Nonpoint Source Assess-
ments required by section 319(a) of the CWA that,
without additional action to control nonpoint
sources of pollution, cannot reasonably be ex-
pected to attain or maintain water quality stand-
ards due to storm sewers, construction, highway
maintenance and runoff from municipal landfills
and municipal sludge adding significant pollution
(or contributing to a violation of water quality
standards);
(¥) Identified and classified according to eutro-
phic condition of publicly owned lakes listed in
State reports required under section 314(a) of the
CWA (include the following: A description of
those publicly owned lakes for which uses are
known to be impaired; a description of procedures,
processes and methods to control the discharge of
pollutants from municipal separate storm sewers
into such lakes; and a description of methods and
procedures to restore the quality of such lakes);
(5) Areas of concern of the Great Lakes identi-
fied by the International Joint Commission;
(6) Designated estuaries under the National Es-
tuary Program under section 320 of the CWA;
(7) Recognized by the applicant as highly val-
ued or sensitive waters;
(8) Defined by the State or U.S. Fish and Wild-
life Services's National Wetlands Inventory as
wetlands; and
(9) Found to have pollutants in bottom sedi-
ments, fish tissue or biosurvey data.
(D) Field screening. Results of a field screening
analysis for illicit connections and illegal dumping
for either selected field screening points or major
outfalls covered in the permit application. At a
minimum, a screening analysis shall include a nar-
rative description, for either each field screening
point or major outfall, of visual observations made
during dry weather periods. If any flow is ob-
served, two grab samples shall be collected during
a 24 hour period with a minimum period of four
hours between samples. For all such samples, a
narrative description of the color, odor, turbidity,
the presence of an oil sheen or surface scum as
well as any other relevant observations regarding
the potential presence of non-storm water dis-
charges or illegal dumping shall be provided. In
addition, a narrative description of the results of a
field analysis using suitable methods to estimate
pH, total chlorine, total copper, total phenol, and
detergents (or surfactants) shall be provided along
with a description of the flow rate. Where the field
analysis does not involve analytical methods ap-
proved under 40 CFR part 136, the applicant shall
provide a description of the method used including
the name of the manufacturer of the test method
along with the range and accuracy of the test.
28
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§122.26
Field screening points shall be either major
outfalls or other outfall points (or any other point
of access such as manholes) randomly located
throughout the storm sewer system by placing a
grid over a drainage system map and identifying
those cells of the grid which contain a segment of
the storm sewer system or major outfall. The field
screening points shall be established using the fol-
lowing guidelines and criteria:
(7) A grid system consisting of perpendicular
north-south and east-west lines spaced Vi mile
apart shall be overlayed on a map of the municipal
storm sewer system, creating a series of cells;
(2) All cells that contain a segment of the storm
sewer system shall be identified; one field screen-
ing point shall be selected in each cell; major
outfalls may be used as field screening points;
(3) Field screening points should be located
downstream of any sources of suspected illegal or
illicit activity;
(¥) Field screening points shall be located to the
degree practicable at the farthest manhole or other
accessible location downstream in the system,
within each cell; however, safety of personnel and
accessibility of the location should be considered
in making this determination;
(5) Hydrological conditions; total drainage area
of the site; population density of the site; traffic
density; age of the structures or buildings in the
area; history of the area; and land use types;
(6) For medium municipal separate storm sewer
systems, no more than 250 cells need to have
identified field screening points; in large municipal
separate storm sewer systems, no more than 500
cells need to have identified field screening points;
cells established by the grid that contain no storm
sewer segments will be eliminated from consider-
ation; if fewer than 250 cells in medium municipal
sewers are created, and fewer than 500 in large
systems are created by the overlay on the munici-
pal sewer map, then all those cells which contain
a segment of the sewer system shall be subject to
field screening (unless access to the separate storm
sewer system is impossible); and
(7) Large or medium municipal separate storm
sewer systems which are unable to utilize the pro-
cedures described in paragraphs (d)(l)(iv)(D) (7)
through (6) of this section, because a sufficiently
detailed map of the separate storm sewer systems
is unavailable, shall field screen no more than 500
or 250 major outfalls respectively (or all major
outfalls in the system, if less); in such cir-
cumstances, the applicant shall establish a grid
system consisting of north-south and east-west
lines spaced Vi mile apart as an overlay to the
boundaries of the municipal storm sewer system,
thereby creating a series of cells; the applicant will
then select major outfalls in as many cells as pos-
sible until at least 500 major outfalls (large mu-
nicipalities) or 250 major outfalls (medium mu-
nicipalities) are selected; a field screening analysis
shall be undertaken at these major outfalls.
(E) Characterization plan. Information and a
proposed program to meet the requirements of
paragraph (d)(2)(iii) of this section. Such descrip-
tion shall include: the location of outfalls or field
screening points appropriate for representative data
collection under paragraph (d)(2)(iii)(A) of this
section, a description of why the outfall or field
screening point is representative, the seasons dur-
ing which sampling is intended, a description of
the sampling equipment. The proposed location of
outfalls or field screening points for such sampling
should reflect water quality concerns {see para-
graph (d)(l)(iv)(C) of this section) to the extent
practicable.
(v) Management programs. (A) A description of
the existing management programs to control pol-
lutants from the municipal separate storm sewer
system. The description shall provide information
on existing structural and source controls, includ-
ing operation and maintenance measures for struc-
tural controls, that are currently being imple-
mented. Such controls may include, but are not
limited to: Procedures to control pollution result-
ing from construction activities; floodplain man-
agement controls; wetland protection measures;
best management practices for new subdivisions;
and emergency spill response programs. The de-
scription may address controls established under
State law as well as local requirements.
(B) A description of the existing program to
identify illicit connections to the municipal storm
sewer system. The description should include in-
spection procedures and methods for detecting and
preventing illicit discharges, and describe areas
where this program has been implemented.
(vi) Fiscal resources. (A) A description of the
financial resources currently available to the mu-
nicipality to complete part 2 of the permit applica-
tion. A description of the municipality's budget for
existing storm water programs, including an over-
view of the municipality's financial resources and
budget, including overall indebtedness and assets,
and sources of funds for storm water programs.
(2) Part 2. Part 2 of the application shall consist
of:
(i) Adequate legal authority. A demonstration
that the applicant can operate pursuant to legal au-
thority established by statute, ordinance or series
of contracts which authorizes or enables the appli-
cant at a minimum to:
(A) Control through ordinance, permit, contract,
order or similar means, the contribution of pollut-
ants to the municipal storm sewer by storm water
discharges associated with industrial activity and
the quality of storm water discharged from sites of
industrial activity;
29
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§122.26
(B) Prohibit through ordinance, order or similar
means, illicit discharges to the municipal separate
storm sewer;
(C) Control through ordinance, order or similar
means the discharge to a municipal separate storm
sewer of spills, dumping or disposal of materials
other than storm water;
(D) Control through interagency agreements
among coapplicants the contribution of pollutants
from one portion of the municipal system to an-
other portion of the municipal system;
(E) Require compliance with conditions in ordi-
nances, permits, contracts or orders; and
(F) Carry out all inspection, surveillance and
monitoring procedures necessary to determine
compliance and noncompliance with permit condi-
tions including the prohibition on illicit discharges
to the municipal separate storm sewer.
(ii) Source identification. The location of any
major outfall that discharges to waters of the Unit-
ed States that was not reported under paragraph
(d)(l)(iii)(B)(7) of this section. Provide an inven-
tory, organized by watershed of the name and ad-
dress, and a description (such as SIC codes) which
best reflects the principal products or services pro-
vided by each facility which may discharge, to the
municipal separate storm sewer, storm water asso-
ciated with industrial activity;
(iii) Characterization data. When "quantitative
data" for a pollutant are required under paragraph
(d)(a)(iii)(A)(_?) of this paragraph, the applicant
must collect a sample of effluent in accordance
with 40 CFR 122.21(g)(7) and analyze it for the
pollutant in accordance with analytical methods
approved under 40 CFR part 136. When no analyt-
ical method is approved the applicant may use any
suitable method but must provide a description of
the method. The applicant must provide informa-
tion characterizing the quality and quantity of dis-
charges covered in the permit application, includ-
ing:
(A) Quantitative data from representative
outfalls designated by the Director (based on in-
formation received in part 1 of the application, the
Director shall designate between five and ten
outfalls or field screening points as representative
of the commercial, residential and industrial land
use activities of the drainage area contributing to
the system or, where there are less than five
outfalls covered in the application, the Director
shall designate all outfalls) developed as follows:
(7) For each outfall or field screening point des-
ignated under this subparagraph, samples shall be
collected of storm water discharges from three
storm events occurring at least one month apart in
accordance with the requirements at § 122.21(g)(7)
(the Director may allow exemptions to sampling
three storm events when climatic conditions create
good cause for such exemptions);
(2) A narrative description shall be provided of
the date and duration of the storm event(s) sam-
pled, rainfall estimates of the storm event which
generated the sampled discharge and the duration
between the storm event sampled and the end of
the previous measurable (greater than 0.1 inch
rainfall) storm event;
(3) For samples collected and described under
paragraphs (d)(2)(iii) (A)(7) and (A)(2) of this sec-
tion, quantitative data shall be provided for: the
organic pollutants listed in Table II; the pollutants
listed in Table III (toxic metals, cyanide, and total
phenols) of appendix D of 40 CFR part 122, and
for the following pollutants:
Total suspended solids (TSS)
Total dissolved solids (TDS)
COD
BOD5
Oil and grease
Fecal coliform
Fecal streptococcus
PH
Total Kjeldahl nitrogen
Nitrate plus nitrite
Dissolved phosphorus
Total ammonia plus organic nitrogen
Total phosphorus
(¥) Additional limited quantitative data required
by the Director for determining permit conditions
(the Director may require that quantitative data
shall be provided for additional parameters, and
may establish sampling conditions such as the lo-
cation, season of sample collection, form of pre-
cipitation (snow melt, rainfall) and other param-
eters necessary to insure representativeness);
(B) Estimates of the annual pollutant load of the
cumulative discharges to waters of the United
States from all identified municipal outfalls and
the event mean concentration of the cumulative
discharges to waters of the United States from all
identified municipal outfalls during a storm event
(as described under § 122.21(c)(7)) for BOD5,
COD, TSS, dissolved solids, total nitrogen, total
ammonia plus organic nitrogen, total phosphorus,
dissolved phosphorus, cadmium, copper, lead, and
zinc. Estimates shall be accompanied by a descrip-
tion of the procedures for estimating constituent
loads and concentrations, including any modelling,
data analysis, and calculation methods;
(C) A proposed schedule to provide estimates
for each major outfall identified in either para-
graph (d)(2)(ii) or (d)(l)(iii)(B)(7) of this section
of the seasonal pollutant load and of the event
mean concentration of a representative storm for
any constituent detected in any sample required
under paragraph (d)(2)(iii)(A) of this section; and
(D) A proposed monitoring program for rep-
resentative data collection for the term of the per-
mit that describes the location of outfalls or field
screening points to be sampled (or the location of
30
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§122.26
instream stations), why the location is representa-
tive, the frequency of sampling, parameters to be
sampled, and a description of sampling equipment.
(iv) Proposed management program. A pro-
posed management program covers the duration of
the permit. It shall include a comprehensive plan-
ning process which involves public participation
and where necessary intergovernmental coordina-
tion, to reduce the discharge of pollutants to the
maximum extent practicable using management
practices, control techniques and system, design
and engineering methods, and such other provi-
sions which are appropriate. The program shall
also include a description of staff and equipment
available to implement the program. Separate pro-
posed programs may be submitted by each
coapplicant. Proposed programs may impose con-
trols on a systemwide basis, a watershed basis, a
jurisdiction basis, or on individual outfalls. Pro-
posed programs will be considered by the Director
when developing permit conditions to reduce pol-
lutants in discharges to the maximum extent prac-
ticable. Proposed management programs shall de-
scribe priorities for implementing controls. Such
programs shall be based on:
(A) A description of structural and source con-
trol measures to reduce pollutants from runoff
from commercial and residential areas that are dis-
charged from the municipal storm sewer system
that are to be implemented during the life of the
permit, accompanied with an estimate of the ex-
pected reduction of pollutant loads and a proposed
schedule for implementing such controls. At a
minimum, the description shall include:
(7) A description of maintenance activities and
a maintenance schedule for structural controls to
reduce pollutants (including floatables) in dis-
charges from municipal separate storm sewers;
(2) A description of planning procedures includ-
ing a comprehensive master plan to develop, im-
plement and enforce controls to reduce the dis-
charge of pollutants from municipal separate storm
sewers which receive discharges from areas of
new development and significant redevelopment.
Such plan shall address controls to reduce pollut-
ants in discharges from municipal separate storm
sewers after construction is completed. (Controls
to reduce pollutants in discharges from municipal
separate storm sewers containing construction site
runoff are addressed in paragraph (d)(2)(iv)(D) of
this section;
(_?) A description of practices for operating and
maintaining public streets, roads and highways and
procedures for reducing the impact on receiving
waters of discharges from municipal storm sewer
systems, including pollutants discharged as a result
of deicing activities;
(4) A description of procedures to assure that
flood management projects assess the impacts on
the water quality of receiving water bodies and
that existing structural flood control devices have
been evaluated to determine if retrofitting the de-
vice to provide additional pollutant removal from
storm water is feasible;
(5) A description of a program to monitor pol-
lutants in runoff from operating or closed munici-
pal landfills or other treatment, storage or disposal
facilities for municipal waste, which shall identify
priorities and procedures for inspections and estab-
lishing and implementing control measures for
such discharges (this program can be coordinated
with the program developed under paragraph
(d)(2)(iv)(C) of this section); and
(6) A description of a program to reduce to the
maximum extent practicable, pollutants in dis-
charges from municipal separate storm sewers as-
sociated with the application of pesticides, herbi-
cides and fertilizer which will include, as appro-
priate, controls such as educational activities, per-
mits, certifications and other measures for com-
mercial applicators and distributors, and controls
for application in public right-of-ways and at mu-
nicipal facilities.
(B) A description of a program, including a
schedule, to detect and remove (or require the dis-
charger to the municipal separate storm sewer to
obtain a separate NPDES permit for) illicit dis-
charges and improper disposal into the storm
sewer. The proposed program shall include:
(7) A description of a program, including in-
spections, to implement and enforce an ordinance,
orders or similar means to prevent illicit dis-
charges to the municipal separate storm sewer sys-
tem; this program description shall address all
types of illicit discharges, however the following
category of non-storm water discharges or flows
shall be addressed where such discharges are iden-
tified by the municipality as sources of pollutants
to waters of the United States: water line flushing,
landscape irrigation, diverted stream flows, rising
ground waters, uncontaminated ground water infil-
tration (as defined at 40 CFR 35.2005(20)) to sep-
arate storm sewers, uncontaminated pumped
ground water, discharges from potable water
sources, foundation drains, air conditioning con-
densation, irrigation water, springs, water from
crawl space pumps, footing drains, lawn watering,
individual residential car washing, flows from
riparian habitats and wetlands, dechlorinated
swimming pool discharges, and street wash water
(program descriptions shall address discharges or
flows from fire fighting only where such dis-
charges or flows are identified as significant
sources of pollutants to waters of the United
States);
(2) A description of procedures to conduct on-
going field screening activities during the life of
31
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§122.26
the permit, including areas or locations that will be
evaluated by such field screens;
(3) A description of procedures to be followed
to investigate portions of the separate storm sewer
system that, based on the results of the field
screen, or other appropriate information, indicate a
reasonable potential of containing illicit discharges
or other sources of non-storm water (such proce-
dures may include: sampling procedures for
constituents such as fecal coliform, fecal strepto-
coccus, surfactants (MBAS), residual chlorine,
fluorides and potassium; testing with fluorometric
dyes; or conducting in storm sewer inspections
where safety and other considerations allow. Such
description shall include the location of storm
sewers that have been identified for such evalua-
tion);
(¥) A description of procedures to prevent, con-
tain, and respond to spills that may discharge into
the municipal separate storm sewer;
(5) A description of a program to promote, pub-
licize, and facilitate public reporting of the pres-
ence of illicit discharges or water quality impacts
associated with discharges from municipal separate
storm sewers;
(6) A description of educational activities, pub-
lic information activities, and other appropriate ac-
tivities to facilitate the proper management and
disposal of used oil and toxic materials; and
(7) A description of controls to limit infiltration
of seepage from municipal sanitary sewers to mu-
nicipal separate storm sewer systems where nec-
essary;
(C) A description of a program to monitor and
control pollutants in storm water discharges to mu-
nicipal systems from municipal landfills, hazard-
ous waste treatment, disposal and recovery facili-
ties, industrial facilities that are subject to section
313 of title III of the Superfund Amendments and
Reauthorization Act of 1986 (SARA), and indus-
trial facilities that the municipal permit applicant
determines are contributing a substantial pollutant
loading to the municipal storm sewer system. The
program shall:
(1) Identify priorities and procedures for inspec-
tions and establishing and implementing control
measures for such discharges;
(2) Describe a monitoring program for storm
water discharges associated with the industrial fa-
cilities identified in paragraph (d)(2)(iv)(C) of this
section, to be implemented during the term of the
permit, including the submission of quantitative
data on the following constituents: any pollutants
limited in effluent guidelines subcategories, where
applicable; any pollutant listed in an existing
NPDES permit for a facility; oil and grease, COD,
pH, BOD5, TSS, total phosphorus, total Kjeldahl
nitrogen, nitrate plus nitrite nitrogen, and any in-
formation on discharges required under 40 CFR
122.21(g)(7) (iii) and (iv).
(D) A description of a program to implement
and maintain structural and non-structural best
management practices to reduce pollutants in
storm water runoff from construction sites to the
municipal storm sewer system, which shall in-
clude:
(7) A description of procedures for site planning
which incorporate consideration of potential water
quality impacts;
(2) A description of requirements for non-
structural and structural best management prac-
tices;
(3) A description of procedures for identifying
priorities for inspecting sites and enforcing control
measures which consider the nature of the con-
struction activity, topography, and the characteris-
tics of soils and receiving water quality; and
(¥) A description of appropriate educational and
training measures for construction site operators.
(v) Assessment of controls. Estimated reductions
in loadings of pollutants from discharges of mu-
nicipal storm sewer constituents from municipal
storm sewer systems expected as the result of the
municipal storm water quality management pro-
gram. The assessment shall also identify known
impacts of storm water controls on ground water.
(vi) Fiscal analysis. For each fiscal year to be
covered by the permit, a fiscal analysis of the nec-
essary capital and operation and maintenance ex-
penditures necessary to accomplish the activities
of the programs under paragraphs (d)(2) (iii) and
(iv) of this section. Such analysis shall include a
description of the source of funds that are pro-
posed to meet the necessary expenditures, includ-
ing legal restrictions on the use of such funds.
(vii) Where more than one legal entity submits
an application, the application shall contain a de-
scription of the roles and responsibilities of each
legal entity and procedures to ensure effective co-
ordination.
(viii) Where requirements under paragraph
(d)(l)(iv)(E), (d)(2)(ii), (d)(2)(iii)(B) and (d)(2)(iv)
of this section are not practicable or are not appli-
cable, the Director may exclude any operator of a
discharge from a municipal separate storm sewer
which is designated under paragraph (a)(l)(v),
(b)(4)(ii) or (b)(7)(ii) of this section from such re-
quirements. The Director shall not exclude the op-
erator of a discharge from a municipal separate
storm sewer identified in appendix F, G, H or I of
part 122, from any of the permit application re-
quirements under this paragraph except where au-
thorized under this section.
(e) Application deadlines under paragraph
(a)(l). Any operator of a point source required to
obtain a permit under paragraph (a)(l) of this sec-
tion that does not have an effective NPDES permit
32
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§122.26
covering its storm water outfalls shall submit an
application in accordance with the following dead-
lines:
(1) Individual applications, (i) Except as pro-
vided in paragraph (e)(l)(ii) of this section, for
any storm water discharge associated with indus-
trial activity identified in paragraphs (b)(14) (i)
through (xi) of this section, that is not part of a
group application as described in paragraph (c)(2)
of this section or which is not authorized by a
storm water general permit, a permit application
made pursuant to paragraph (C) of this section
shall be submitted to the Director by October 1,
1992;
(ii) For any storm water discharge associated
with industrial activity from a facility that is
owned or operated by a municipality with a popu-
lation of less than 100,000 other than an airport,
powerplant, or uncontrolled sanitary landfill, per-
mit application requirements are contained in para-
graph (g) of this section.
(2) For any group application submitted in ac-
cordance with paragraph (c)(2) of this section:
(i) Part 1. (A) Except as provided in paragraph
(e)(2)(i)(B) of this section, part 1 of the applica-
tion shall be submitted to the Director, Office of
Wastewater Enforcement and Compliance by Sep-
tember 30, 1991;
(B) Any municipality with a population of less
than 250,000 shall not be required to submit a part
1 application before May 18, 1992.
(C) For any storm water discharge associated
with industrial activity from a facility that is
owned or operated by a municipality with a popu-
lation of less than 100,000 other than an airport,
powerplant, or uncontrolled sanitary landfill, per-
mit applications requirements are reserved.
(ii) Based on information in the part 1 applica-
tion, the Director will approve or deny the mem-
bers in the group application within 60 days after
receiving part 1 of the group application.
(iii) Part 2. (A) Except as provided in paragraph
(e)(2)(iii)(B) of this section, part 2 of the applica-
tion shall be submittted to the Director, Office of
Wastewater Enforcement and Compliance by Oc-
tober 1, 1992;
(B) Any municipality with a population of less
than 250,000 shall not be required to submit a part
1 application before May 17, 1993.
(C) For any storm water discharge associated
with industrial activity from a facility that is
owned or operated by a municipality with a popu-
lation of less than 100,000 other than an airport,
powerplant, or uncontrolled sanitary landfill, per-
mit applications requirements are reserved.
(iv) Rejected facilities. (A) Except as provided
in paragraph (e)(2)(iv)(B) of this section, facilities
that are rejected as members of the group shall
submit an individual application (or obtain cov-
erage under an applicable general permit) no later
than 12 months after the date of receipt of the no-
tice of rejection or October 1, 1992, whichever
comes first.
(B) Facilities that are owned or operated by a
municipality and that are rejected as members of
part 1 group application shall submit an individual
application no later than 180 days after the date of
receipt of the notice of rejection or October 1,
1992, whichever is later.
(v) A facility listed under paragraph (b)(14) (i)-
(xi) of this section may add on to a group applica-
tion submitted in accordance with paragraph
(e)(2)(i) of this section at the discretion of the Of-
fice of Water Enforcement and Permits, and only
upon a showing of good cause by the facility and
the group applicant; the request for the addition of
the facility shall be made no later than February
18, 1992; the addition of the facility shall not
cause the percentage of the facilities that are re-
quired to submit quantitative data to be less than
10%, unless there are over 100 facilities in the
group that are submitting quantitative data; ap-
proval to become part of group application must
be obtained from the group or the trade associa-
tion representing the individual facilities.
(3) For any discharge from a large municipal
separate storm sewer system;
(i) Part 1 of the application shall be submitted
to the Director by November 18, 1991;
(ii) Based on information received in the part 1
application the Director will approve or deny a
sampling plan under paragraph (d)(l)(iv)(E) of this
section within 90 days after receiving the part 1
application;
(iii) Part 2 of the application shall be submitted
to the Director by November 16, 1992.
(4) For any discharge from a medium municipal
separate storm sewer system;
(i) Part 1 of the application shall be submitted
to the Director by May 18, 1992.
(ii) Based on information received in the part 1
application the Director will approve or deny a
sampling plan under paragraph (d)(l)(iv)(E) of this
section within 90 days after receiving the part 1
application.
(iii) Part 2 of the application shall be submitted
to the Director by May 17, 1993.
(5) A permit application shall be submitted to
the Director within 60 days of notice, unless per-
mission for a later date is granted by the Director
(see 40 CFR 124.52(c)), for:
(i) A storm water discharge which the Director,
or in States with approved NPDES programs, ei-
ther the Director or the EPA Regional Adminis-
trator, determines that the discharge contributes to
a violation of a water quality standard or is a sig-
nificant contributor of pollutants to waters of the
33
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§122.26
United States (see paragraph (a)(l)(v) of this sec-
tion);
(ii) A storm water discharge subject to para-
graph (c)(l)(v) of this section.
(6) Facilities with existing NPDES permits for
storm water discharges associated with industrial
activity shall maintain existing permits. Facilities
with permits for storm water discharges associated
with industrial activity which expire on or after
May 18, 1992 shall submit a new application in
accordance with the requirements of 40 CFR
122.21 and 40 CFR 122.26(c) (Form 1, Form 2F,
and other applicable Forms) 180 days before the
expiration of such permits.
(7) The Director shall issue or deny permits for
discharges composed entirely of storm water under
this section in accordance with the following
schedule:
(i)(A) Except as provided in paragraph
(e)(7)(i)(B) of this section, the Director shall issue
or deny permits for storm water discharges associ-
ated with industrial activity no later than October
1, 1993, or, for new sources or existing sources
which fail to submit a complete permit application
by October 1, 1992, one year after receipt of a
complete permit application;
(B) For any municipality with a population of
less than 250,000 which submits a timely Part I
group application under paragraph (e)(2)(i)(B) of
this section, the Director shall issue or deny per-
mits for storm water discharges associated with in-
dustrial activity no later than May 17, 1994, or,
for any such municipality which fails to submit a
complete Part II group permit application by May
17, 1993, one year after receipt of a complete per-
mit application;
(ii) The Director shall issue or deny permits for
large municipal separate storm sewer systems no
later than November 16, 1993, or, for new sources
or existing sources which fail to submit a com-
plete permit application by November 16, 1992,
one year after receipt of a complete permit appli-
cation;
(iii) The Director shall issue or deny permits for
medium municipal separate storm sewer systems
no later than May 17, 1994, or, for new sources
or existing sources which fail to submit a com-
plete permit application by May 17, 1993, one
year after receipt of a complete permit application.
(f) Petitions. (1) Any operator of a municipal
separate storm sewer system may petition the Di-
rector to require a separate NPDES permit (or a
permit issued under an approved NPDES State
program) for any discharge into the municipal sep-
arate storm sewer system.
(2) Any person may petition the Director to re-
quire a NPDES permit for a discharge which is
composed entirely of storm water which contrib-
utes to a violation of a water quality standard or
is a significant contributor of pollutants to waters
of the United States.
(3) The owner or operator of a municipal sepa-
rate storm sewer system may petition the Director
to reduce the Census estimates of the population
served by such separate system to account for
storm water discharged to combined sewers as de-
fined by 40 CFR 35.2005(b)(ll) that is treated in
a publicly owned treatment works. In municipali-
ties in which combined sewers are operated, the
Census estimates of population may be reduced
proportional to the fraction, based on estimated
lengths, of the length of combined sewers over the
sum of the length of combined sewers and munici-
pal separate storm sewers where an applicant has
submitted the NPDES permit number associated
with each discharge point and a map indicating
areas served by combined sewers and the location
of any combined sewer overflow discharge point.
(4) Any person may petition the Director for the
designation of a large or medium municipal sepa-
rate storm sewer system as defined by paragraphs
(b)(4)(iv) or (b)(7)(iv) of this section.
(5) The Director shall make a final determina-
tion on any petition received under this section
within 90 days after receiving the petition.
(g) Application requirements for discharges
composed entirely of storm water under Clean
Water Act section 402(p)(6). Any operator of a
point source required to obtain a permit under
paragraph (a)(9) of this section shall submit an ap-
plication in accordance with the following require-
ments.
(1) Application deadlines. The operator shall
submit an application in accordance with the fol-
lowing deadlines:
(i) A discharger which the Director determines
to contribute to a violation of a water quality
standard or is a significant contributor of pollut-
ants to waters of the United States shall apply for
a permit to the Director within 180 days of receipt
of notice, unless permission for a later date is
granted by the Director (see 40 CFR 124.52(c)); or
(ii) All other dischargers shall apply to the Di-
rector no later than August 7, 2001.
(2) Application requirements. The operator shall
submit an application in accordance with the fol-
lowing requirements, unless otherwise modified by
the Director:
(i) Individual application for non-municipal dis-
charges. The requirements contained in paragraph
(c)(l) of this section.
(ii) Application requirements for municipal sep-
arate storm sewer discharges. The requirements
contained in paragraph (d) of this section.
34
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§122.28
(iii) Notice of intent to be covered by a general
permit issued by the Director. The requirements
contained in 40 CFR 122.28(b)(2).
[55 FR 48063, Nov. 16, 1990, as amended at 56 FR
12100, Mar. 21, 1991; 56 FR 56554, Nov. 5, 1991; 57
FR 11412, Apr. 2, 1992; 57 FR 60447, Dec. 18, 1992;
60 FR 17956, Apr. 7, 1995; 60 FR 19464, Apr. 18, 1995;
60 FR 40235, Aug. 7, 1995]
§122.27 Silvicultural activities (appli-
cable to State NPDES programs, see
§123.25).
(a) Permit requirement. Silvicultural point
sources, as defined in this section, as point sources
subject to the NPDES permit program.
(b) Definitions. (1) Silvicultural point source
means any discernible, confined and discrete con-
veyance related to rock crushing, gravel washing,
log sorting, or log storage facilities which are op-
erated in connection with Silvicultural activities
and from which pollutants are discharged into wa-
ters of the United States. The term does not in-
clude non-point source Silvicultural activities such
as nursery operations, site preparation, reforest-
ation and subsequent cultural treatment, thinning,
prescribed burning, pest and fire control, harvest-
ing operations, surface drainage, or road construc-
tion and maintenance from which there is natural
runoff. However, some of these activities (such as
stream crossing for roads) may involve point
source discharges of dredged or fill material which
may require a CWA section 404 permit (See 33
CFR 209.120 and part 233).
(2) Rock crushing and gravel washing facilities
means facilities which process crushed and broken
stone, gravel, and riprap (See 40 CFR part 436,
subpart B, including the effluent limitations guide-
lines).
(3) Log sorting and log storage facilities means
facilities whose discharges result from the holding
of unprocessed wood, for example, logs or
roundwood with bark or after removal of bark
held in self-contained bodies of water (mill ponds
or log ponds) or stored on land where water is ap-
plied intentionally on the logs (wet decking). (See
40 CFR part 429, subpart I, including the effluent
limitations guidelines).
§122.28 General permits (applicable to
State NPDES programs, see
§123.25).
(a) Coverage. The Director may issue a general
permit in accordance with the following:
(1) Area. The general permit shall be written to
cover a category of discharges or sludge use or
disposal practices or facilities described in the per-
mit under paragraph (a)(2)(ii) of this section, ex-
cept those covered by individual permits, within a
geographic area. The area shall correspond to ex-
isting geographic or political boundaries, such as:
(i) Designated planning areas under sections 208
and 303 of CWA;
(ii) Sewer districts or sewer authorities;
(iii) City, county, or State political boundaries;
(iv) State highway systems;
(v) Standard metropolitan statistical areas as de-
fined by the Office of Management and Budget;
(vi) Urbanized areas as designated by the Bu-
reau of the Census according to criteria in 30 FR
15202 (May 1, 1974); or
(vii) Any other appropriate division or combina-
tion of boundaries.
(2) Sources. The general permit may be written
to regulate, within the area described in paragraph
(a)(l) of this section, either:
(i) Storm water point sources; or
(ii) A category of point sources other than storm
water point sources, or a category of "treatment
works treating domestic sewage," if the sources or
"treatment works treating domestic sewage" all:
(A) Involve the same or substantially similar
types of operations;
(B) Discharge the same types of wastes or en-
gage in the same types of sludge use or disposal
practices;
(C) Require the same effluent limitations, oper-
ating conditions, or standards for sewage sludge
use or disposal;
(D) Require the same or similar monitoring; and
(E) In the opinion of the Director, are more ap-
propriately controlled under a general permit than
under individual permits.
(b) Administration. (1) In general. General per-
mits may be issued, modified, revoked and re-
issued, or terminated in accordance with applicable
requirements of part 124 or corresponding State
regulations. Special procedures for issuance are
found at § 123.44 for States and § 124.58 for EPA.
(2) Authorization to discharge, or authorization
to engage in sludge use and disposal practices, (i)
Except as provided in paragraphs (b)(2)(v) and
(b)(2)(vi) of this section, dischargers (or treatment
works treating domestic sewage) seeking coverage
under a general permit shall submit to the Director
a written notice of intent to be covered by the
general permit. A discharger (or treatment works
treating domestic sewage) who fails to submit a
notice of intent in accordance with the terms of
the permit is not authorized to discharge, (or in the
case of sludge disposal permit, to engage in a
sludge use or disposal practice), under the terms of
the general permit unless the general permit, in ac-
cordance with paragraph (b)(2)(v) of this section,
contains a provision that a notice of intent is not
required or the Director notifies a discharger (or
treatment works treating domestic sewage) that it
is covered by a general permit in accordance with
35
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§122.28
paragraph (b)(2)(vi) of this section. A complete
and timely, notice of intent (NOI), to be covered
in accordance with general permit requirements,
fulfills the requirements for permit applications for
purposes of §§ 122.6, 122.21 and 122.26.
(ii) The contents of the notice of intent shall be
specified in the general permit and shall require
the submission of information necessary for ade-
quate program implementation, including at a min-
imum, the legal name and address of the owner or
operator, the facility name and address, type of fa-
cility or discharges, and the receiving stream(s).
General permits for storm water discharges associ-
ated with industrial activity from inactive mining,
inactive oil and gas operations, or inactive landfills
occurring on Federal lands where an operator can-
not be identified may contain alternative notice of
intent requirements. All notices of intent shall be
signed in accordance with § 122.22.
(iii) General permits shall specify the deadlines
for submitting notices of intent to be covered and
the date(s) when a discharger is authorized to dis-
charge under the permit;
(iv) General permits shall specify whether a dis-
charger (or treatment works treating domestic sew-
age) that has submitted a complete and timely no-
tice of intent to be covered in accordance with the
general permit and that is eligible for coverage
under the permit, is authorized to discharge, (or in
the case of a sludge disposal permit, to engage in
a sludge use or disposal practice), in accordance
with the permit either upon receipt of the notice
of intent by the Director, after a waiting period
specified in the general permit, on a date specified
in the general permit, or upon receipt of notifica-
tion of inclusion by the Director. Coverage may be
terminated or revoked in accordance with para-
graph (b)(3) of this section.
(v) Discharges other than discharges from pub-
licly owned treatment works, combined sewer
overflows, primary industrial facilities, and storm
water discharges associated with industrial activ-
ity, may, at the discretion of the Director, be au-
thorized to discharge under a general permit with-
out submitting a notice of intent where the Direc-
tor finds that a notice of intent requirement would
be inappropriate. In making such a finding, the Di-
rector shall consider: the type of discharge; the ex-
pected nature of the discharge; the potential for
toxic and conventional pollutants in the dis-
charges; the expected volume of the discharges;
other means of identifying discharges covered by
the permit; and the estimated number of dis-
charges to be covered by the permit. The Director
shall provide in the public notice of the general
permit the reasons for not requiring a notice of in-
tent.
(vi) The Director may notify a discharger (or
treatment works treating domestic sewage) that it
is covered by a general permit, even if the dis-
charger (or treatment works treating domestic sew-
age) has not submitted a notice of intent to be
covered. A discharger (or treatment works treating
domestic sewage) so notified may request an indi-
vidual permit under paragraph (b)(3)(iii) of this
section.
(3) Requiring an individual permit, (i) The Di-
rector may require any discharger authorized by a
general permit to apply for and obtain an individ-
ual NPDES permit. Any interested person may pe-
tition the Director to take action under this para-
graph. Cases where an individual NPDES permit
may be required include the following:
(A) The discharger or "treatment works treating
domestic sewage" is not in compliance with the
conditions of the general NPDES permit;
(B) A change has occurred in the availability of
demonstrated technology or practices for the con-
trol or abatement of pollutants applicable to the
point source or treatment works treating domestic
sewage;
(C) Effluent limitation guidelines are promul-
gated for point sources covered by the general
NPDES permit;
(D) A Water Quality Management plan contain-
ing requirements applicable to such point sources
is approved;
(E) Circumstances have changed since the time
of the request to be covered so that the discharger
is no longer appropriately controlled under the
general permit, or either a temporary or permanent
reduction or elimination of the authorized dis-
charge is necessary;
(F) Standards for sewage sludge use or disposal
have been promulgated for the sludge use and dis-
posal practice covered by the general NPDES per-
mit; or
(G) The discharge(s) is a significant contributor
of pollutants. In making this determination, the Di-
rector may consider the following factors:
(7) The location of the discharge with respect to
waters of the United States;
(2) The size of the discharge;
(_?) The quantity and nature of the pollutants
discharged to waters of the United States; and
(4) Other relevant factors;
(ii) For EPA issued general permits only, the
Regional Administrator may require any owner or
operator authorized by a general permit to apply
for an individual NPDES permit as provided in
paragraph (b)(3)(i) of this section, only if the
owner or operator has been notified in writing that
a permit application is required. This notice shall
include a brief statement of the reasons for this
decision, an application form, a statement setting
a time for the owner or operator to file the appli-
cation, and a statement that on the effective date
of the individual NPDES permit the general permit
36
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§122.29
as it applies to the individual permittee shall auto-
matically terminate. The Director may grant addi-
tional time upon request of the applicant.
(iii) Any owner or operator authorized by a gen-
eral permit may request to be excluded from the
coverage of the general permit by applying for an
individual permit. The owner or operator shall
submit an application under § 122.21, with reasons
supporting the request, to the Director no later
than 90 days after the publication by EPA of the
general permit in the FEDERAL REGISTER or the
publication by a State in accordance with applica-
ble State law. The request shall be processed
under part 124 or applicable State procedures. The
request shall be granted by issuing of any individ-
ual permit if the reasons cited by the owner or op-
erator are adequate to support the request.
(iv) When an individual NPDES permit is is-
sued to an owner or operator otherwise subject to
a general NPDES permit, the applicability of the
general permit to the individual NPDES permittee
is automatically terminated on the effective date of
the individual permit.
(v) A source excluded from a general permit
solely because it already has an individual permit
may request that the individual permit be revoked,
and that it be covered by the general permit. Upon
revocation of the individual permit, the general
permit shall apply to the source.
(c) Offshore oil and gas facilities (Not applica-
ble to State programs). (1) The Regional Adminis-
trator shall, except as provided below, issue gen-
eral permits covering discharges from offshore oil
and gas exploration and production facilities with-
in the Region's jurisdiction. Where the offshore
area includes areas, such as areas of biological
concern, for which separate permit conditions are
required, the Regional Administrator may issue
separate general permits, individual permits, or
both. The reason for separate general permits or
individual permits shall be set forth in the appro-
priate fact sheets or statements of basis. Any state-
ment of basis or fact sheet for a draft permit shall
include the Regional Administrator's tentative de-
termination as to whether the permit applies to
"new sources," "new dischargers," or existing
sources and the reasons for this determination, and
the Regional Administrator's proposals as to areas
of biological concern subject either to separate in-
dividual or general permits. For Federally leased
lands, the general permit area should generally be
no less extensive than the lease sale area defined
by the Department of the Interior.
(2) Any interested person, including any pro-
spective permittee, may petition the Regional Ad-
ministrator to issue a general permit. Unless the
Regional Administrator determines under para-
graph (c)(l) of this section that no general permit
is appropriate, he shall promptly provide a project
decision schedule covering the issuance of the
general permit or permits for any lease sale area
for which the Department of the Interior has pub-
lished a draft environmental impact statement. The
project decision schedule shall meet the require-
ments of § 124.3(g), and shall include a schedule
providing for the issuance of the final general per-
mit or permits not later than the date of the final
notice of sale projected by the Department of the
Interior or six months after the date of the request,
whichever is later. The Regional Administrator
may, at his discretion, issue a project decision
schedule for offshore oil and gas facilities in the
territorial seas.
(3) Nothing in this paragraph (c) shall affect the
authority of the Regional Administrator to require
an individual permit under § 122.28(b)(3)(i) (A)
through (G).
(Clean Water Act (33 U.S.C. 1251 et seq.), Safe Drinking
Water Act (42 U.S.C. 300f et seq.), Clean Air Act (42
U.S.C. 7401 et seq.), Resource Conservation and Recov-
ery Act (42 U.S.C. 6901 et seq.))
[48 FR 14153, Apr. 1, 1983, as amended at 48 FR 39619,
Sept. 1, 1983; 49 FR 38048, Sept. 26, 1984; 50 FR 6940,
Feb. 19, 1985; 54 FR 18782, May 2, 1989; 55 FR 48072,
Nov. 16, 1990; 57 FR 11412 and 11413, Apr. 2, 1992]
§122.29 New sources and new dis-
chargers.
(a) Definitions. (1) New source and new dis-
charger are defined in § 122.2. [See Note 2.]
(2) Source means any building, structure, facil-
ity, or installation from which there is or may be
a discharge of pollutants.
(3) Existing source means any source which is
not a new source or a new discharger.
(4) Site is defined in § 122.2;
(5) Facilities or equipment means buildings,
structures, process or production equipment or ma-
chinery which form a permanent part of the new
source and which will be used in its operation, if
these facilities or equipment are of such value as
to represent a substantial commitment to construct.
It excludes facilities or equipment used in connec-
tion with feasibility, engineering, and design stud-
ies regarding the source or water pollution treat-
ment for the source.
(b) Criteria for new source determination. (1)
Except as otherwise provided in an applicable new
source performance standard, a source is a "new
source" if it meets the definition of "new source"
in § 122.2, and
(i) It is constructed at a site at which no other
source is located; or
(ii) It totally replaces the process or production
equipment that causes the discharge of pollutants
at an existing source; or
(iii) Its processes are substantially independent
of an existing source at the same site. In determin-
37
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§122.29
ing whether these processes are substantially inde-
pendent, the Director shall consider such factors as
the extent to which the new facility is integrated
with the existing plant; and the extent to which the
new facility is engaged in the same general type
of activity as the existing source.
(2) A source meeting the requirements of para-
graphs (b)(l) (i), (ii), or (iii) of this section is a
new source only if a new source performance
standard is independently applicable to it. If there
is no such independently applicable standard, the
source is a new discharger. See § 122.2.
(3) Construction on a site at which an existing
source is located results in a modification subject
to § 122.62 rather than a new source (or a new
discharger) if the construction does not create a
new building, structure, facility, or installation
meeting the criteria of paragraph (b)(l) (ii) or (iii)
of this section but otherwise alters, replaces, or
adds to existing process or production equipment.
(4) Construction of a new source as defined
under § 122.2 has commenced if the owner or op-
erator has:
(i) Begun, or caused to begin as part of a con-
tinuous on-site construction program:
(A) Any placement, assembly, or installation of
facilities or equipment; or
(B) Significant site preparation work including
clearing, excavation or removal of existing build-
ings, structures, or facilities which is necessary for
the placement, assembly, or installation of new
source facilities or equipment; or
(ii) Entered into a binding contractual obligation
for the purchase of facilities or equipment which
are intended to be used in its operation with a rea-
sonable time. Options to purchase or contracts
which can be terminated or modified without sub-
stantial loss, and contracts for feasibility engineer-
ing, and design studies do not constitute a contrac-
tual obligation under the paragraph.
(c) Requirement for an environmental impact
statement. (1) The issuance of an NPDES permit
to new source:
(i) By EPA may be a major Federal action sig-
nificantly affecting the quality of the human envi-
ronment within the meaning of the National Envi-
ronmental Policy Act of 1969 (NEPA), 33 U.S.C.
4321 et seq. and is subject to the environmental
review provisions of NEPA as set out in 40 CFR
part 6, subpart F. EPA will determine whether an
Environmental Impact Statement (EIS) is required
under § 122.21(k) (special provisions for applica-
tions from new sources) and 40 CFR part 6, sub-
part F;
(ii) By an NPDES approved State is not a Fed-
eral action and therefore does not require EPA to
conduct an environmental review.
(2) An EIS prepared under this paragraph shall
include a recommendation either to issue or deny
the permit.
(i) If the recommendation is to deny the permit,
the final EIS shall contain the reasons for the rec-
ommendation and list those measures, if any,
which the applicant could take to cause the rec-
ommendation to be changed;
(ii) If the recommendation is to issue the permit,
the final EIS shall recommend the actions, if any,
which the permittee should take to prevent or min-
imize any adverse environmental impacts;
(3) The Regional Administrator, to the extent al-
lowed by law, shall issue, condition (other than
imposing effluent limitations), or deny the new
source NPDES permit following a complete eval-
uation of any significant beneficial and adverse
impacts of the proposed action and a review of the
recommendations contained in the EIS or finding
of no significant impact.
(d) Effect of compliance with new source per-
formance standards. (The provisions of this para-
graph do not apply to existing sources which mod-
ify their pollution control facilities or construct
new pollution control facilities and achieve per-
formance standards, but which are neither new
sources or new dischargers or otherwise do not
meet the requirements of this paragraph.)
(1) Except as provided in paragraph (d)(2) of
this section, any new discharger, the construction
of which commenced after October 18, 1972, or
new source which meets the applicable promul-
gated new source performance standards before
the commencement of discharge, may not be sub-
ject to any more stringent new source performance
standards or to any more stringent technology-
based standards under section 301(b)(2) of CWA
for the soonest ending of the following periods:
(i) Ten years from the date that construction is
completed;
(ii) Ten years from the date the source begins
to discharge process or other nonconstruction re-
lated wastewater; or
(iii) The period of depreciation or amortization
of the facility for the purposes of section 167 or
169 (or both) of the Internal Revenue Code of
1954.
(2) The protection from more stringent stand-
ards of performance afforded by paragraph (d)(l)
of this section does not apply to:
(i) Additional or more stringent permit condi-
tions which are not technology based; for example,
conditions based on water quality standards, or
toxic effluent standards or prohibitions under sec-
tion 307(a) of CWA; or
(ii) Additional permit conditions in accordance
with § 125.3 controlling toxic pollutants or hazard-
ous substances which are not controlled by new
source performance standards. This includes per-
38
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§122.41
mil conditions controlling pollutants other than
those identified as toxic pollutants or hazardous
substances when control of these pollutants has
been specifically identified as the method to con-
trol the toxic pollutants or hazardous substances.
(3) When an NPDES permit issued to a source
with a "protection period" under paragraph (d)(l)
of this section will expire on or after the expira-
tion of the protection period, that permit shall re-
quire the owner or operator of the source to com-
ply with the requirements of section 301 and any
other then applicable requirements of CWA imme-
diately upon the expiration of the protection pe-
riod. No additional period for achieving compli-
ance with these requirements may be allowed ex-
cept when necessary to achieve compliance with
requirements promulgated less than 3 years before
the expiration of the protection period.
(4) The owner or operator of a new source, a
new discharger which commenced discharge after
August 13, 1979, or a recommencing discharger
shall install and have in operating condition, and
shall "start-up" all pollution control equipment
required to meet the conditions of its permits be-
fore beginning to discharge. Within the shortest
feasible time (not to exceed 90 days), the owner
or operator must meet all permit conditions. The
requirements of this paragraph do not apply if the
owner or operator is issued a permit containing a
compliance schedule under § 122.47(a)(2).
(5) After the effective date of new source per-
formance standards, it shall be unlawful for any
owner or operator of any new source to operate
the source in violation of those standards applica-
ble to the source.
[48 FR 14153, Apr. 1, 1983, as amended at 49 FR 38048,
Sept. 26, 1984; 50 FR 4514, Jan. 31, 1985; 50 FR 6941,
Feb. 19, 1985]
Subpart C—Permit Conditions
§122.41 Conditions applicable to all
permits (applicable to State pro-
grams, see § 123.25).
The following conditions apply to all NPDES
permits. Additional conditions applicable to
NPDES permits are in § 122.42. All conditions ap-
plicable to NPDES permits shall be incorporated
into the permits either expressly or by reference.
If incorporated by reference, a specific citation to
these regulations (or the corresponding approved
State regulations) must be given in the permit.
(a) Duty to comply. The permittee must comply
with all conditions of this permit. Any permit non-
compliance constitutes a violation of the Clean
Water Act and is grounds for enforcement action;
for permit termination, revocation and reissuance,
or modification; or denial of a permit renewal ap-
plication.
(1) The permittee shall comply with effluent
standards or prohibitions established under section
307(a) of the Clean Water Act for toxic pollutants
and with standards for sewage sludge use or dis-
posal established under section 405(d) of the
CWA within the time provided in the regulations
that establish these standards or prohibitions or
standards for sewage sludge use or disposal, even
if the permit has not yet been modified to incor-
porate the requirement.
(2) The Clean Water Act provides that any per-
son who violates section 301, 302, 306, 307, 308,
318 or 405 of the Act, or any permit condition or
limitation implementing any such sections in a
permit issued under section 402, or any require-
ment imposed in a pretreatment program approved
under sections 402(a)(3) or 402(b)(8) of the Act,
is subject to a civil penalty not to exceed $25,000
per day for each violation. The Clean Water Act
provides that any person who negligently violates
sections 301, 302, 306, 307, 308, 318, or 405 of
the Act, or any condition or limitation implement-
ing any of such sections in a permit issued under
section 402 of the Act, or any requirement im-
posed in a pretreatment program approved under
section 402(a)(3) or 402(b)(8) of the Act, is sub-
ject to criminal penalties of $2,500 to $25,000 per
day of violation, or imprisonment of not more than
1 year, or both. In the case of a second or subse-
quent conviction for a negligent violation, a person
shall be subject to criminal penalties of not more
than $50,000 per day of violation, or by imprison-
ment of not more than 2 years, or both. Any per-
son who knowingly violates such sections, or such
conditions or limitations is subject to criminal pen-
alties of $5,000 to $50,000 per day of violation,
or imprisonment for not more than 3 years, or
both. In the case of a second or subsequent con-
viction for a knowing violation, a person shall be
subject to criminal penalties of not more than
$100,000 per day of violation, or imprisonment of
not more than 6 years, or both. Any person who
knowingly violates section 301, 302, 303, 306,
307, 308, 318 or 405 of the Act, or any permit
condition or limitation implementing any of such
sections in a permit issued under section 402 of
the Act, and who knows at that time that he there-
by places another person in imminent danger of
death or serious bodily injury, shall, upon convic-
tion, be subject to a fine of not more than
$250,000 or imprisonment of not more than 15
years, or both. In the case of a second or subse-
quent conviction for a knowing endangerment vio-
lation, a person shall be subject to a fine of not
more than $500,000 or by imprisonment of not
more than 30 years, or both. An organization, as
defined in section 309(c)(3)(B)(iii) of the CWA,
shall, upon conviction of violating the imminent
danger provision, be subject to a fine of not more
39
-------
§122.41
than $1,000,000 and can be fined up to $2,000,000
for second or subsequent convictions.
(3) Any person may be assessed an administra-
tive penalty by the Administrator for violating sec-
tion 301, 302, 306, 307, 308, 318 or 405 of this
Act, or any permit condition or limitation imple-
menting any of such sections in a permit issued
under section 402 of this Act. Administrative pen-
alties for Class I violations are not to exceed
$10,000 per violation, with the maximum amount
of any Class I penalty assessed not to exceed
$25,000. Penalties for Class II violations are not
to exceed $10,000 per day for each day during
which the violation continues, with the maximum
amount of any Class II penalty not to exceed
$125,000.
(b) Duty to reapply. If the permittee wishes to
continue an activity regulated by this permit after
the expiration date of this permit, the permittee
must apply for and obtain a new permit.
(c) Need to halt or reduce activity not a de-
fense. It shall not be a defense for a permittee in
an enforcement action that it would have been
necessary to halt or reduce the permitted activity
in order to maintain compliance with the condi-
tions of this permit.
(d) Duty to mitigate. The permittee shall take all
reasonable steps to minimize or prevent any dis-
charge or sludge use or disposal in violation of
this permit which has a reasonable likelihood of
adversely affecting human health or the environ-
ment.
(e) Proper operation and maintenance. The per-
mittee shall at all times properly operate and
maintain all facilities and systems of treatment and
control (and related appurtenances) which are in-
stalled or used by the permittee to achieve compli-
ance with the conditions of this permit. Proper op-
eration and maintenance also includes adequate
laboratory controls and appropriate quality assur-
ance procedures. This provision requires the oper-
ation of back-up or auxiliary facilities or similar
systems which are installed by a permittee only
when the operation is necessary to achieve compli-
ance with the conditions of the permit.
(f) Permit actions. This permit may be modi-
fied, revoked and reissued, or terminated for
cause. The filing of a request by the permittee for
a permit modification, revocation and reissuance,
or termination, or a notification of planned
changes or anticipated noncompliance does not
stay any permit condition.
(g) Property rights. This permit does not convey
any property rights of any sort, or any exclusive
privilege.
(h) Duty to provide information. The permittee
shall furnish to the Director, within a reasonable
time, any information which the Director may re-
quest to determine whether cause exists for modi-
fying, revoking and reissuing, or terminating this
permit or to determine compliance with this per-
mit. The permittee shall also furnish to the Direc-
tor upon request, copies of records required to be
kept by this permit.
(i) Inspection and entry. The permittee shall
allow the Director, or an authorized representative
(including an authorized contractor acting as a rep-
resentative of the Administrator), upon presen-
tation of credentials and other documents as may
be required by law, to:
(1) Enter upon the permittee's premises where
a regulated facility or activity is located or con-
ducted, or where records must be kept under the
conditions of this permit;
(2) Have access to and copy, at reasonable
times, any records that must be kept under the
conditions of this permit;
(3) Inspect at reasonable times any facilities,
equipment (including monitoring and control
equipment), practices, or operations regulated or
required under this permit; and
(4) Sample or monitor at reasonable times, for
the purposes of assuring permit compliance or as
otherwise authorized by the Clean Water Act, any
substances or parameters at any location.
(j) Monitoring and records. (1) Samples and
measurements taken for the purpose of monitoring
shall be representative of the monitored activity.
(2) Except for records of monitoring informa-
tion required by this permit related to the permit-
tee's sewage sludge use and disposal activities,
which shall be retained for a period of at least five
years (or longer as required by 40 CFR part 503),
the permittee shall retain records of all monitoring
information, including all calibration and mainte-
nance records and all original strip chart record-
ings for continuous monitoring instrumentation,
copies of all reports required by this permit, and
records of all data used to complete the applica-
tion for this permit, for a period of at least 3 years
from the date of the sample, measurement, report
or application. This period may be extended by re-
quest of the Director at any time.
(3) Records of monitoring information shall in-
clude:
(i) The date, exact place, and time of sampling
or measurements;
(ii) The individual(s) who performed the sam-
pling or measurements;
(iii) The date(s) analyses were performed;
(iv) The individual(s) who performed the analy-
ses;
(v) The analytical techniques or methods used;
and
(vi) The results of such analyses.
(4) Monitoring results must be conducted ac-
cording to test procedures approved under 40 CFR
part 136 or, in the case of sludge use or disposal,
40
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§122.41
approved under 40 CFR part 136 unless otherwise
specified in 40 CFR part 503, unless other test
procedures have been specified in the permit.
(5) The Clean Water Act provides that any per-
son who falsifies, tampers with, or knowingly ren-
ders inaccurate any monitoring device or method
required to be maintained under this permit shall,
upon conviction, be punished by a fine of not
more than $10,000, or by imprisonment for not
more than 2 years, or both. If a conviction of a
person is for a violation committed after a first
conviction of such person under this paragraph,
punishment is a fine of not more than $20,000 per
day of violation, or by imprisonment of not more
than 4 years, or both.
(k) Signatory requirement. (1) All applications,
reports, or information submitted to the Director
shall be signed and certified. (See § 122.22)
(2) The CWA provides that any person who
knowingly makes any false statement, representa-
tion, or certification in any record or other docu-
ment submitted or required to be maintained under
this permit, including monitoring reports or reports
of compliance or non-compliance shall, upon con-
viction, be punished by a fine of not more than
$10,000 per violation, or by imprisonment for not
more than 6 months per violation, or by both.
(1) Reporting requirements. (1) Planned
changes. The permittee shall give notice to the Di-
rector as soon as possible of any planned physical
alterations or additions to the permitted facility.
Notice is required only when:
(i) The alteration or addition to a permitted fa-
cility may meet one of the criteria for determining
whether a facility is a new source in § 122.29(b);
or
(ii) The alteration or addition could significantly
change the nature or increase the quantity of pol-
lutants discharged. This notification applies to pol-
lutants which are subject neither to effluent limita-
tions in the permit, nor to notification require-
ments under § 122.42(a)(l).
(iii) The alteration or addition results in a sig-
nificant change in the permittee's sludge use or
disposal practices, and such alteration, addition, or
change may justify the application of permit con-
ditions that are different from or absent in the ex-
isting permit, including notification of additional
use or disposal sites not reported during the permit
application process or not reported pursuant to an
approved land application plan;
(2) Anticipated noncompliance. The permittee
shall give advance notice to the Director of any
planned changes in the permitted facility or activ-
ity which may result in noncompliance with per-
mit requirements.
(3) Transfers. This permit is not transferable to
any person except after notice to the Director. The
Director may require modification or revocation
and reissuance of the permit to change the name
of the permittee and incorporate such other re-
quirements as may be necessary under the Clean
Water Act. (See §122.61; in some cases, modi-
fication or revocation and reissuance is manda-
tory.)
(4) Monitoring reports. Monitoring results shall
be reported at the intervals specified elsewhere in
this permit.
(i) Monitoring results must be reported on a
Discharge Monitoring Report (DMR) or forms
provided or specified by the Director for reporting
results of monitoring of sludge use or disposal
practices.
(ii) If the permittee monitors any pollutant more
frequently than required by the permit using test
procedures approved under 40 CFR part 136 or, in
the case of sludge use or disposal, approved under
40 CFR part 136 unless otherwise specified in 40
CFR part 503, or as specified in the permit, the
results of this monitoring shall be included in the
calculation and reporting of the data submitted in
the DMR or sludge reporting form specified by
the Director.
(iii) Calculations for all limitations which re-
quire averaging of measurements shall utilize an
arithmetic mean unless otherwise specified by the
Director in the permit.
(5) Compliance schedules. Reports of compli-
ance or noncompliance with, or any progress re-
ports on, interim and final requirements contained
in any compliance schedule of this permit shall be
submitted no later than 14 days following each
schedule date.
(6) Twenty-four hour reporting, (i) The permit-
tee shall report any noncompliance which may en-
danger health or the environment. Any information
shall be provided orally within 24 hours from the
time the permittee becames aware of the cir-
cumstances. A written submission shall also be
provided within 5 days of the time the permittee
becomes aware of the circumstances. The written
submission shall contain a description of the non-
compliance and its cause; the period of non-
compliance, including exact dates and times, and
if the noncompliance has not been corrected, the
anticipated time it is expected to continue; and
steps taken or planned to reduce, eliminate, and
prevent reoccurrence of the noncompliance.
(ii) The following shall be included as informa-
tion which must be reported within 24 hours under
this paragraph.
(A) Any unanticipated bypass which exceeds
any effluent limitation in the permit. (See
§ 122.41(g).
(B) Any upset which exceeds any effluent limi-
tation in the permit.
(C) Violation of a maximum daily discharge
limitation for any of the pollutants listed by the
41
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§122.41
Director in the permit to be reported within 24
hours. (See § 122.44(g).)
(iii) The Director may waive the written report
on a case-by-case basis for reports under para-
graph (l)(6)(ii) of this section if the oral report has
been received within 24 hours.
(7) Other noncompliance. The permittee shall
report all instances of noncompliance not reported
under paragraphs (1) (4), (5), and (6) of this sec-
tion, at the time monitoring reports are submitted.
The reports shall contain the information listed in
paragraph (1)(6) of this section.
(8) Other information. Where the permittee be-
comes aware that it failed to submit any relevant
facts in a permit application, or submitted incor-
rect information in a permit application or in any
report to the Director, it shall promptly submit
such facts or information.
(m) Bypass—(1) Definitions, (i) Bypass means
the intentional diversion of waste streams from
any portion of a treatment facility.
(ii) Severe property damage means substantial
physical damage to property, damage to the treat-
ment facilities which causes them to become inop-
erable, or substantial and permanent loss of natural
resources which can reasonably be expected to
occur in the absence of a bypass. Severe property
damage does not mean economic loss caused by
delays in production.
(2) Bypass not exceeding limitations. The per-
mittee may allow any bypass to occur which does
not cause effluent limitations to be exceeded, but
only if it also is for essential maintenance to as-
sure efficient operation. These bypasses are not
subject to the provisions of paragraphs (m)(3) and
(m)(4) of this section.
(3) Notice—(i) Anticipated bypass. If the per-
mittee knows in advance of the need for a bypass,
it shall submit prior notice, if possible at least ten
days before the date of the bypass.
(ii) Unanticipated bypass. The permittee shall
submit notice of an unanticipated bypass as re-
quired in paragraph (1)(6) of this section (24-hour
notice).
(4) Prohibition of bypass, (i) Bypass is prohib-
ited, and the Director may take enforcement action
against a permittee for bypass, unless:
(A) Bypass was unavoidable to prevent loss of
life, personal injury, or severe property damage;
(B) There were no feasible alternatives to the
bypass, such as the use of auxiliary treatment fa-
cilities, retention of untreated wastes, or mainte-
nance during normal periods of equipment down-
time. This condition is not satisfied if adequate
back-up equipment should have been installed in
the exercise of reasonable engineering judgment to
prevent a bypass which occurred during normal
periods of equipment downtime or preventive
maintenance; and
(C) The permittee submitted notices as required
under paragraph (m)(3) of this section.
(ii) The Director may approve an anticipated
bypass, after considering its adverse effects, if the
Director determines that it will meet the three con-
ditions listed above in paragraph (m)(4)(i) of this
section.
(n) Upset—(1) Definition. Upset means an ex-
ceptional incident in which there is unintentional
and temporary noncompliance with technology
based permit effluent limitations because of factors
beyond the reasonable control of the permittee. An
upset does not include noncompliance to the ex-
tent caused by operational error, improperly de-
signed treatment facilities, inadequate treatment fa-
cilities, lack of preventive maintenance, or careless
or improper operation.
(2) Effect of an upset. An upset constitutes an
affirmative defense to an action brought for non-
compliance with such technology based permit ef-
fluent limitations if the requirements of paragraph
(n)(3) of this section are met. No determination
made during administrative review of claims that
noncompliance was caused by upset, and before an
action for noncompliance, is final administrative
action subject to judicial review.
(3) Conditions necessary for a demonstration of
upset. A permittee who wishes to establish the af-
firmative defense of upset shall demonstrate,
through properly signed, contemporaneous operat-
ing logs, or other relevant evidence that:
(i) An upset occurred and that the permittee can
identify the cause(s) of the upset;
(ii) The permitted facility was at the time being
properly operated; and
(iii) The permittee submitted notice of the upset
as required in paragraph (l)(6)(ii)(B) of this sec-
tion (24 hour notice).
(iv) The permittee complied with any remedial
measures required under paragraph (d) of this sec-
tion.
(4) Burden of proof. In any enforcement pro-
ceeding the permittee seeking to establish the oc-
currence of an upset has the burden of proof.
(Clean Water Act (33 U.S.C. 1251 et seq.), Safe Drinking
Water Act (42 U.S.C. 300f et seq.), Clean Air Act (42
U.S.C. 7401 et seq.), Resource Conservation and Recov-
ery Act (42 U.S.C. 6901 et seq.))
[48 FR 14153, Apr. 1, 1983, as amended at 48 FR 39620,
Sept. 1, 1983; 49 FR 38049, Sept. 26, 1984; 50 FR 4514,
Jan. 31, 1985; 50 FR 6940, Feb. 19, 1985; 54 FR 255,
Jan. 4, 1989; 54 FR 18783, May 2, 1989]
42
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§122.43
§122.42 Additional conditions appli-
cable to specified categories of
NPDES permits (applicable to State
NPDES programs, see § 123.25).
The following conditions, in addition to those
set forth in § 122.41, apply to all NPDES permits
within the categories specified below:
(a) Existing manufacturing, commercial, mining,
and silvicultural dischargers. In addition to the re-
porting requirements under § 122.41(1), all exist-
ing manufacturing, commercial, mining, and sil-
vicultural dischargers must notify the Director as
soon as they know or have reason to believe:
(1) That any activity has occurred or will occur
which would result in the discharge, on a routine
or frequent basis, of any toxic pollutant which is
not limited in the permit, if that discharge will ex-
ceed the highest of the following "notification
levels":
(i) One hundred micrograms per liter (100 |lg/
i);
(ii) Two hundred micrograms per liter (200 |lg/
1) for acrolein and acrylonitrile; five hundred
micrograms per liter (500 Hg/1) for 2,4-
dinitrophenol and for 2-methyl-4,6-dinitrophenol;
and one milligram per liter (1 mg/1) for antimony;
(iii) Five (5) times the maximum concentration
value reported for that pollutant in the permit ap-
plication in accordance with § 122.21(g)(7); or
(iv) The level established by the Director in ac-
cordance with § 122.44(f).
(2) That any activity has occurred or will occur
which would result in any discharge, on a non-
routine or infrequent basis, of a toxic pollutant
which is not limited in the permit, if that discharge
will exceed the highest of the following ' 'notifica-
tion levels":
(i) Five hundred micrograms per liter (500 |lg/
i);
(ii) One milligram per liter (1 mg/1) for anti-
mony;
(iii) Ten (10) times the maximum concentration
value reported for that pollutant in the permit ap-
plication in accordance with § 122.21(g)(7).
(iv) The level established by the Director in ac-
cordance with § 122.44(f).
(b) Publicly owned treatment works. All
POTWs must provide adequate notice to the Di-
rector of the following:
(1) Any new introduction of pollutants into the
POTW from an indirect discharger which would
be subject to section 301 or 306 of CWA if it
were directly discharging those pollutants; and
(2) Any substantial change in the volume or
character of pollutants being introduced into that
POTW by a source introducing pollutants into the
POTW at the time of issuance of the permit.
(3) For purposes of this paragraph, adequate no-
tice shall include information on (i) the quality
and quantity of effluent introduced into the
POTW, and (ii) any anticipated impact of the
change on the quantity or quality of effluent to be
discharged from the POTW.
(c) Municipal separate storm sewer systems.
The operator of a large or medium municipal sep-
arate storm sewer system or a municipal separate
storm sewer that has been designated by the Di-
rector under § 122.26(a)(l)(v) of this part must
submit an annual report by the anniversary of the
date of the issuance of the permit for such system.
The report shall include:
(1) The status of implementing the components
of the storm water management program that are
established as permit conditions;
(2) Proposed changes to the storm water man-
agement programs that are established as permit
condition. Such proposed changes shall be consist-
ent with § 122.26(d)(2)(iii) of this part; and
(3) Revisions, if necessary, to the assessment of
controls and the fiscal analysis reported in the per-
mit application under § 122.26(d)(2)(iv) and
(d)(2)(v) of this part;
(4) A summary of data, including monitoring
data, that is accumulated throughout the reporting
year;
(5) Annual expenditures and budget for year
following each annual report;
(6) A summary describing the number and na-
ture of enforcement actions, inspections, and pub-
lic education programs;
(7) Identification of water quality improvements
or degradation;
(d) Storm water discharges. The initial permits
for discharges composed entirely of storm water
issued pursuant to § 122.26(e)(7) of this part shall
require compliance with the conditions of the per-
mit as expeditiously as practicable, but in no event
later than three years after the date of issuance of
the permit.
[48 FR 14153, Apr. 1, 1983, as amended at 49 FR 38049,
Sept. 26, 1984; 50 FR 4514, Jan. 31, 1985; 55 FR 48073,
Nov. 16, 1990; 57 FR 60448, Dec. 18, 1992]
§ 122.43 Establishing permit conditions
(applicable to State programs, see
§ 123.25).
(a) In addition to conditions required in all per-
mits (§§ 122.41 and 122.42), the Director shall es-
tablish conditions, as required on a case-by-case
basis, to provide for and assure compliance with
all applicable requirements of CWA and regula-
tions. These shall include conditions under
§§ 122.46 (duration of permits), 122.47(a) (sched-
ules of compliance), 122.48 (monitoring), and for
EPA permits only 122.47(b) (alternates schedule
of compliance) and 122.49 (considerations under
Federal law).
43
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§122.44
(b)(l) For a State issued permit, an applicable
requirement is a State statutory or regulatory re-
quirement which takes effect prior to final admin-
istrative disposition of a permit. For a permit is-
sued by EPA, an applicable requirement is a statu-
tory or regulatory requirement (including any in-
terim final regulation) which takes effect prior to
the issuance of the permit (except as provided in
§124.86(c) for NPDES permits being processed
under subpart E or F of part 124). Section 124.14
(reopening of comment period) provides a means
for reopening EPA permit proceedings at the dis-
cretion of the Director where new requirements
become effective during the permitting process
and are of sufficient magnitude to make additonal
proceedings desirable. For State and EPA adminis-
tered programs, an applicable requirement is also
any requirement which takes effect prior to the
modification or revocation and reissuance of a per-
mit, to the extent allowed in § 122.62.
(2) New or reissued permits, and to the extent
allowed under § 122.62 modified or revoked and
reissued permits, shall incorporate each of the ap-
plicable requirements referenced in §§ 122.44 and
122.45.
(c) Incorporation. All permit conditions shall be
incorporated either expressly or by reference. If in-
corporated by reference, a specific citation to the
applicable regulations or requirements must be
given in the permit.
§122.44 Establishing limitations,
standards, and other permit condi-
tions (applicable to State NPDES
programs, see § 123.25).
In addition to the conditions established under
§ 122.43(a), each NPDES permit shall include con-
ditions meeting the following requirements when
applicable.
(a) Technology-based effluent limitations and
standards based on effluent limitations and stand-
ards promulgated under section 301 of CWA or
new source performance standards promulgated
under section 306 of CWA, on case-by-case efflu-
ent limitations determined under section 402(a)(l)
of CWA, or on a combination of the two, in ac-
cordance with § 125.3. For new sources or new
dischargers, these technology based limitations and
standards are subject to the provisions of
§ 122.29(d) (protection period).
(b)(l) Other effluent limitations and standards
under sections 301, 302, 303, 307, 318 and 405 of
CWA. If any applicable toxic effluent standard or
prohibition (including any schedule of compliance
specified in such effluent standard or prohibition)
is promulgated under section 307(a) of CWA for
a toxic pollutant and that standard or prohibition
is more stringent than any limitation on the pollut-
ant in the permit, the Director shall institute pro-
ceedings under these regulations to modify or re-
voke and reissue the permit to conform to the
toxic effluent standard or prohibition. See also
§ 122.41(a).
(2) Standards for sewage sludge use or disposal
under section 405(d) of the CWA unless those
standards have been included in a permit issued
under the appropriate provisions of subtitle C of
the Solid Waste Disposal Act, Part C of Safe
Drinking Water Act, the Marine Protection, Re-
search, and Sanctuaries Act of 1972, or the Clean
Air Act, or under State permit programs approved
by the Administrator. When there are no applica-
ble standards for sewage sludge use or disposal,
the permit may include requirements developed on
a case-by-case basis to protect public health and
the environment from any adverse effects which
may occur from toxic pollutants in sewage sludge.
If any applicable standard for sewage sludge use
or disposal is promulgated under section 405(d) of
the CWA and that standard is more stringent than
any limitation on the pollutant or practice in the
permit, the Director may initiate proceedings under
these regulations to modify or revoke and reissue
the permit to conform to the standard for sewage
sludge use or disposal.
(c) Reopener clause: for any discharger within
a primary industry category (see appendix A), re-
quirements under section 307(a)(2) of CWA as
follows:
(1) On or before June 30, 1981: (i) If applicable
standards or limitations have not yet been promul-
gated, the permit shall include a condition stating
that, if an applicable standard or limitation is pro-
mulgated under sections 301(b)(2) (C) and (D),
304(b)(2), and 307(a)(2) and that effluent standard
or limitation is more stringent than any effluent
limitation in the permit or controls a pollutant not
limited in the permit, the permit shall be promptly
modified or revoked and reissued to conform to
that effluent standard or limitation.
(ii) If applicable standards or limitations have
been promulgated or approved, the permit shall in-
clude those standards or limitations. (If EPA ap-
proves existing effluent limitations or decides not
to develop new effluent limitations, it will publish
a notice in the FEDERAL REGISTER that the limita-
tions are "approved" for the purpose of this regu-
lation.)
(2) On or after the statutory deadline set forth
in section 301(b)(2) (A), (C), and (E) of CWA,
any permit issued shall include effluent limitations
to meet the requirements of section 301(b)(2) (A),
(C), (D), (E), (F), whether or not applicable efflu-
ent limitations guidelines have been promulgated
or approved. These permits need not incorporate
the clause required by paragraph (c)(l) of this sec-
tion.
44
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§122.44
(3) The Director shall promptly modify or re-
voke and reissue any permit containing the clause
required under paragraph (c)(l) of this section to
incorporate an applicable effluent standard or limi-
tation under sections 301(b)(2) (C) and (D),
304(b)(2) and 307(a)(2) which is promulgated or
approved after the permit is issued if that effluent
standard or limitation is more stringent than any
effluent limitation in the permit, or controls a pol-
lutant not limited in the permit.
(4) For any permit issued to a treatment works
treating domestic sewage (including "sludge-only
facilities"), the Director shall include a reopener
clause to incorporate any applicable standard for
sewage sludge use or disposal promulgated under
section 405(d) of the CWA. The Director may
promptly modify or revoke and reissue any permit
containing the reopener clause required by this
paragraph if the standard for sewage sludge use or
disposal is more stringent than any requirements
for sludge use or disposal in the permit, or con-
trols a pollutant or practice not limited in the per-
mit.
(d) Water quality standards and State require-
ments: any requirements in addition to or more
stringent than promulgated effluent limitations
guidelines or standards under sections 301, 304,
306, 307, 318 and 405 of CWA necessary to:
(1) Achieve water quality standards established
under section 303 of the CWA, including State
narrative criteria for water quality.
(i) Limitations must control all pollutants or
pollutant parameters (either conventional,
nonconventional, or toxic pollutants) which the Di-
rector determines are or may be discharged at a
level which will cause, have the reasonable poten-
tial to cause, or contribute to an excursion above
any State water quality standard, including State
narrative criteria for water quality.
(ii) When determining whether a discharge
causes, has the reasonable potential to cause, or
contributes to an in-stream excursion above a nar-
rative or numeric criteria within a State water
quality standard, the permitting authority shall use
procedures which account for existing controls on
point and nonpoint sources of pollution, the varia-
bility of the pollutant or pollutant parameter in the
effluent, the sensitivity of the species to toxicity
testing (when evaluating whole effluent toxicity),
and where appropriate, the dilution of the effluent
in the receiving water.
(iii) When the permitting authority determines,
using the procedures in paragraph (d)(l)(ii) of this
section, that a discharge causes, has the reasonable
potential to cause, or contributes to an in-stream
excursion above the allowable ambient concentra-
tion of a State numeric criteria within a State
water quality standard for an individual pollutant,
the permit must contain effluent limits for that
pollutant.
(iv) When the permitting authority determines,
using the procedures in paragraph (d)(l)(ii) of this
section, that a discharge causes, has the reasonable
potential to cause, or contributes to an in-stream
excursion above the numeric criterion for whole
effluent toxicity, the permit must contain effluent
limits for whole effluent toxicity.
(v) Except as provided in this subparagraph,
when the permitting authority determines, using
the procedures in paragraph (d)(l)(ii) of this sec-
tion, toxicity testing data, or other information,
that a discharge causes, has the reasonable poten-
tial to cause, or contributes to an in-stream excur-
sion above a narrative criterion within an applica-
ble State water quality standard, the permit must
contain effluent limits for whole effluent toxicity.
Limits on whole effluent toxicity are not necessary
where the permitting authority demonstrates in the
fact sheet or statement of basis of the NPDES per-
mit, using the procedures in paragraph (d)(l)(ii) of
this section, that chemical-specific limits for the
effluent are sufficient to attain and maintain appli-
cable numeric and narrative State water quality
standards.
(vi) Where a State has not established a water
quality criterion for a specific chemical pollutant
that is present in an effluent at a concentration that
causes, has the reasonable potential to cause, or
contributes to an excursion above a narrative cri-
terion within an applicable State water quality
standard, the permitting authority must establish
effluent limits using one or more of the following
options:
(A) Establish effluent limits using a calculated
numeric water quality criterion for the pollutant
which the permitting authority demonstrates will
attain and maintain applicable narrative water
quality criteria and will fully protect the des-
ignated use. Such a criterion may be derived using
a proposed State criterion, or an explicit State pol-
icy or regulation interpreting its narrative water
quality criterion, supplemented with other relevant
information which may include: EPA's Water
Quality Standards Handbook, October 1983, risk
assessment data, exposure data, information about
the pollutant from the Food and Drug Administra-
tion, and current EPA criteria documents; or
(B) Establish effluent limits on a case-by-case
basis, using EPA's water quality criteria, published
under section 304(a) of the CWA, supplemented
where necessary by other relevant information; or
(C) Establish effluent limitations on an indicator
parameter for the pollutant of concern, provided:
(7) The permit identifies which pollutants are
intended to be controlled by the use of the effluent
limitation;
45
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§122.44
(2) The fact sheet required by § 124.56 sets
forth the basis for the limit, including a finding
that compliance with the effluent limit on the indi-
cator parameter will result in controls on the pol-
lutant of concern which are sufficient to attain and
maintain applicable water quality standards;
(3) The permit requires all effluent and ambient
monitoring necessary to show that during the term
of the permit the limit on the indicator parameter
continues to attain and maintain applicable water
quality standards; and
(¥) The permit contains a reopener clause allow-
ing the permitting authority to modify or revoke
and reissue the permit if the limits on the indicator
parameter no longer attain and maintain applicable
water quality standards.
(vii) When developing water quality-based ef-
fluent limits under this paragraph the permitting
authority shall ensure that:
(A) The level of water quality to be achieved by
limits on point sources established under this para-
graph is derived from, and complies with all appli-
cable water quality standards; and
(B) Effluent limits developed to protect a nar-
rative water quality criterion, a numeric water
quality criterion, or both, are consistent with the
assumptions and requirements of any available
wasteload allocation for the discharge prepared by
the State and approved by EPA pursuant to 40
CFR 130.7.
(2) Attain or maintain a specified water quality
through water quality related effluent limits estab-
lished under section 302 of CWA;
(3) Conform to the conditions to a State certifi-
cation under section 401 of the CWA that meets
the requirements of § 124.53 when EPA is the per-
mitting authority. If a State certification is stayed
by a court of competent jurisdiction or an appro-
priate State board or agency, EPA shall notify the
State that the Agency will deem certification
waived unless a finally effective State certification
is received within sixty days from the date of the
notice. If the State does not forward a finally ef-
fective certification within the sixty day period,
EPA shall include conditions in the permit that
may be necessary to meet EPA's obligation under
section 301(b)(l)(C) of the CWA;
(4) Conform to applicable water quality require-
ments under section 401(a)(2) of CWA when the
discharge affects a State other than the certifying
State;
(5) Incorporate any more stringent limitations,
treatment standards, or schedule of compliance re-
quirements established under Federal or State law
or regulations in accordance with section
301(b)(l)(C) of CWA;
(6) Ensure consistency with the requirements of
a Water Quality Management plan approved by
EPA under section 208(b) of CWA;
(7) Incorporate section 403(c) criteria under part
125, subpart M, for ocean discharges;
(8) Incorporate alternative effluent limitations or
standards where warranted by "fundamentally dif-
ferent factors," under 40 CFR part 125, subpart
D;
(9) Incorporate any other appropriate require-
ments, conditions, or limitations (other than efflu-
ent limitations) into a new source permit to the ex-
tent allowed by the National Environmental Policy
Act, 42 U.S.C. 4321 et seq. and section 511 of the
CWA, when EPA is the permit issuing authority.
(See § 122.29(c)).
(e) Technology-based controls for toxic pollut-
ants. Limitations established under paragraphs (a),
(b), or (d) of this section, to control pollutants
meeting the criteria listed in paragraph (e)(l) of
this section. Limitations will be established in ac-
cordance with paragraph (e)(2) of this section. An
explanation of the development of these limita-
tions shall be included in the fact sheet under
§124.56(b)(l)(i).
(1) Limitations must control all toxic pollutants
which the Director determines (based on informa-
tion reported in a permit application under
§ 122.21(g)(7) or (10) or in a notification under
§ 122.42(a)(l) or on other information) are or may
be discharged at a level greater than the level
which can be achieved by the technology-based
treatment requirements appropriate to the permittee
under § 125.3(c); or
(2) The requirement that the limitations control
the pollutants meeting the criteria of paragraph
(e)(l) of this section will be satisfied by:
(i) Limitations on those pollutants; or
(ii) Limitations on other pollutants which, in the
judgment of the Director, will provide treatment of
the pollutants under paragraph (e)(l) of this sec-
tion to the levels required by § 125.3(c).
(f) Notification level. A "notification level"
which exceeds the notification level of
§ 122.42(a)(l)(i), (ii) or (iii), upon a petition from
the permittee or on the Director's initiative. This
new notification level may not exceed the level
which can be achieved by the technology-based
treatment requirements appropriate to the permittee
under § 125.3(c)
(g) Twenty-four hour reporting. Pollutants for
which the permittee must report violations of max-
imum daily discharge limitations under
§ 122.41(l)(6)(ii)(C) (24-hour reporting) shall be
listed in the permit. This list shall include any
toxic pollutant or hazardous substance, or any pol-
lutant specifically identified as the method to con-
trol a toxic pollutant or hazardous substance.
(h) Durations for permits, as set forth in
§ 122.46.
(i) Monitoring requirements. In addition to
§ 122.48, the following monitoring requirements:
46
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§122.44
(1) To assure compliance with permit limita-
tions, requirements to monitor:
(i) The mass (or other measurement specified in
the permit) for each pollutant limited in the per-
mit;
(ii) The volume of effluent discharged from
each outfall;
(iii) Other measurements as appropriate includ-
ing pollutants in internal waste streams under
§ 122.45(i); pollutants in intake water for net limi-
tations under § 122.45(f); frequency, rate of dis-
charge, etc., for noncontinuous discharges under
§ 122.45(e); pollutants subject to notification re-
quirements under § 122.42(a); and pollutants in
sewage sludge or other monitoring as specified in
40 CFR part 503; or as determined to be necessary
on a case-by-case basis pursuant to section
405(d)(4) of the CWA.
(iv) According to test procedures approved
under 40 CFR part 136 for the analyses of pollut-
ants having approved methods under that part, and
according to a test procedure specified in the per-
mit for pollutants with no approved methods.
(2) Except as provided in paragraphs (i)(4) and
(i)(5) of this section, requirements to report mon-
itoring results shall be established on a case-by-
case basis with a frequency dependent on the na-
ture and effect of the discharge, but in no case less
than once a year. For sewage sludge use or dis-
posal practices, requirements to monitor and report
results shall be established on a case-by-case basis
with a frequency dependent on the nature and ef-
fect of the sewage sludge use or disposal practice;
minimally this shall be as specified in 40 CFR
part 503 (where applicable), but in no case less
than once a year.
(3) Requirements to report monitoring results
for storm water discharges associated with indus-
trial activity which are subject to an effluent limi-
tation guideline shall be established on a case-by-
case basis with a frequency dependent on the na-
ture and effect of the discharge, but in no case less
than once a year.
(4) Requirements to report monitoring results
for storm water discharges associated with indus-
trial activity (other than those addressed in para-
graph (i)(3) of this section) shall be established on
a case-by-case basis with a frequency dependent
on the nature and effect of the discharge. At a
minimum, a permit for such a discharge must re-
quire:
(i) The discharger to conduct an annual inspec-
tion of the facility site to identify areas contribut-
ing to a storm water discharge associated with in-
dustrial activity and evaluate whether measures to
reduce pollutant loadings identified in a storm
water pollution prevention plan are adequate and
properly implemented in accordance with the
terms of the permit or whether additional control
measures are needed;
(ii) The discharger to maintain for a period of
three years a record summarizing the results of the
inspection and a certification that the facility is in
compliance with the plan and the permit, and iden-
tifying any incidents of non-compliance;
(iii) Such report and certification be signed in
accordance with § 122.22; and
(iv) Permits for storm water discharges associ-
ated with industrial activity from inactive mining
operations may, where annual inspections are im-
practicable, require certification once every three
years by a Registered Professional Engineer that
the facility is in compliance with the permit, or al-
ternative requirements.
(5) Permits which do not require the submittal
of monitoring result reports at least annually shall
require that the permittee report all instances of
noncompliance not reported under § 122.41(1) (1),
(4), (5), and (6) at least annually.
(j) Pretreatment program for POTWs. Require-
ments for POTWs to:
(1) Identify, in terms of character and volume of
pollutants, any significant indirect dischargers into
the POTW subject to pretreatment standards under
section 307(b) of CWA and 40 CFR part 403.
(2) Submit a local program when required by
and in accordance with 40 CFR part 403 to assure
compliance with pretreatment standards to the ex-
tent applicable under section 307(b). The local
program shall be incorporated into the permit as
described in 40 CFR part 403. The program shall
require all indirect dischargers to the POTW to
comply with the reporting requirements of 40 CFR
part 403.
(3) For POTWs which are "sludge-only facili-
ties," a requirement to develop a pretreatment pro-
gram under 40 CFR part 403 when the Director
determines that a pretreatment program is nec-
essary to assure compliance with Section 405(d) of
the CWA.
(k) Best management practices to control or
abate the discharge of pollutants when:
(1) Authorized under section 304(e) of CWA
for the control of toxic pollutants and hazardous
substances from ancillary industrial activities;
(2) Numeric effluent limitations are infeasible,
or
(3) The practices are reasonably necessary to
achieve effluent limitations and standards or to
carry out the purposes and intent of CWA.
(1) Reissued permits. (1) Except as provided in
paragraph (1)(2) of this section when a permit is
renewed or reissued, interim effluent limitations,
standards or conditions must be at least as strin-
gent as the final effluent limitations, standards, or
conditions in the previous permit (unless the cir-
cumstances on which the previous permit was
47
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§122.45
based have materially and substantially changed
since the time the permit was issued and would
constitute cause for permit modification or revoca-
tion and reissuance under § 122.62.)
(2) In the case of effluent limitations established
on the basis of Section 402(a)(l)(B) of the CWA,
a permit may not be renewed, reissued, or modi-
fied on the basis of effluent guidelines promul-
gated under section 304(b) subsequent to the origi-
nal issuance of such permit, to contain effluent
limitations which are less stringent than the com-
parable effluent limitations in the previous permit.
(i) Exceptions—A permit with respect to which
paragraph (1)(2) of this section applies may be re-
newed, reissued, or modified to contain a less
stringent effluent limitation applicable to a pollut-
ant, if—
(A) Material and substantial alterations or addi-
tions to the permitted facility occurred after permit
issuance which justify the application of a less
stringent effluent limitation;
(B)(7) Information is available which was not
available at the time of permit issuance (other than
revised regulations, guidance, or test methods) and
which would have justified the application of a
less stringent effluent limitation at the time of per-
mit issuance; or
(2) The Administrator determines that technical
mistakes or mistaken interpretations of law were
made in issuing the permit under section
402(a)(l)(b);
(C) A less stringent effluent limitation is nec-
essary because of events over which the permittee
has no control and for which there is no reason-
ably available remedy;
(D) The permittee has received a permit modi-
fication under section 301(c), 301(g), 301(h),
301(i), 301(k), 301(n), or 316(a); or
(E) The permittee has installed the treatment fa-
cilities required to meet the effluent limitations in
the previous permit and has properly operated and
maintained the facilities but has nevertheless been
unable to achieve the previous effluent limitations,
in which case the limitations in the reviewed, re-
issued, or modified permit may reflect the level of
pollutant control actually achieved (but shall not
be less stringent than required by effluent guide-
lines in effect at the time of permit renewal,
reissuance, or modification).
(ii) Limitations. In no event may a permit with
respect to which paragraph (1)(2) of this section
applies be renewed, reissued, or modified to con-
tain an effluent limitation which is less stringent
than required by effluent guidelines in effect at the
time the permit is renewed, reissued, or modified.
In no event may such a permit to discharge into
waters be renewed, issued, or modified to contain
a less stringent effluent limitation if the implemen-
tation of such limitation would result in a violation
of a water quality standard under section 303 ap-
plicable to such waters.
(m) Privately owned treatment works. For a pri-
vately owned treatment works, any conditions ex-
pressly applicable to any user, as a limited co-per-
mittee, that may be necessary in the permit issued
to the treatment works to ensure compliance with
applicable requirements under this part. Alter-
natively, the Director may issue separate permits
to the treatment works and to its users, or may re-
quire a separate permit application from any user.
The Director's decision to issue a permit with no
conditions applicable to any user, to impose condi-
tions on one or more users, to issue separate per-
mits, or to require separate applications, and the
basis for that decision, shall be stated in the fact
sheet for the draft permit for the treatment works.
(n) Grants. Any conditions imposed in grants
made by the Administrator to POTWs under sec-
tions 201 and 204 of CWA which are reasonably
necessary for the achievement of effluent limita-
tions under section 301 of CWA.
(o) Sewage sludge. Requirements under section
405 of CWA governing the disposal of sewage
sludge from publicly owned treatment works or
any other treatment works treating domestic sew-
age for any use for which regulations have been
established, in accordance with any applicable reg-
ulations.
(p) Coast Guard. When a permit is issued to a
facility that may operate at certain times as a
means of transportation over water, a condition
that the discharge shall comply with any applica-
ble regulations promulgated by the Secretary of
the department in which the Coast Guard is oper-
ating, that establish specifications for safe trans-
portation, handling, carriage, and storage of pollut-
ants.
(q) Navigation. Any conditions that the Sec-
retary of the Army considers necessary to ensure
that navigation and anchorage will not be substan-
tially impaired, in accordance with § 124.58.
(r) Great Lakes. When a permit is issued to a
facility that discharges into the Great Lakes Sys-
tem (as defined in 40 CFR 132.2), conditions pro-
mulgated by the State, Tribe, or EPA pursuant to
40 CFR part 132.
[48 FR 14153, Apr. 1, 1983, as amended at 49 FR 31842,
Aug. 8, 1984; 49 FR 38049, Sept. 26, 1984; 50 FR 6940,
Feb. 19, 1985; 50 FR 7912, Feb. 27, 1985; 54 FR 256,
Jan. 4, 1989; 54 FR 18783, May 2, 1989; 54 FR 23895,
June 2, 1989; 57 FR 11413, Apr. 2, 1992; 57 FR 33049,
July 24, 1992; 60 FR 15386, Mar. 23, 1995]
§122.45 Calculating NPDES permit
conditions (applicable to State
NPDES programs, see § 123.25).
(a) Outfalls and discharge points. All permit ef-
fluent limitations, standards and prohibitions shall
48
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§122.45
be established for each outfall or discharge point
of the permitted facility, except as otherwise pro-
vided under § 122.44(k) (BMPs where limitations
are infeasible) and paragraph (i) of this section
(limitations on internal waste streams).
(b) Production-based limitations. (1) In the case
of POTWs, permit effluent limitations, standards,
or prohibitions shall be calculated based on design
flow.
(2)(i) Except in the case of POTWs or as pro-
vided in paragraph (b)(2)(ii) of this section, cal-
culation of any permit limitations, standards, or
prohibitions which are based on production (or
other measure of operation) shall be based not
upon the designed production capacity but rather
upon a reasonable measure of actual production of
the facility. For new sources or new dischargers,
actual production shall be estimated using pro-
jected production. The time period of the measure
of production shall correspond to the time period
of the calculated permit limitations; for example,
monthly production shall be used to calculate av-
erage monthly discharge limitations.
(ii)(A)(7) The Director may include a condition
establishing alternate permit limitations, standards,
or prohibitions based upon anticipated increased
(not to exceed maximum production capability) or
decreased production levels.
(2) For the automotive manufacturing industry
only, the Regional Administrator shall, and the
State Director may establish a condition under
paragraph (b)(2)(ii)(A)(7) of this section if the ap-
plicant satisfactorily demonstrates to the Director
at the time the application is submitted that its ac-
tual production, as indicated in paragraph (b)(2)(i)
of this section, is substantially below maximum
production capability and that there is a reasonable
potential for an increase above actual production
during the duration of the permit.
(B) If the Director establishes permit conditions
under paragraph (b)(2)(ii)(A) of this section:
(7) The permit shall require the permittee to no-
tify the Director at least two business days prior
to a month in which the permittee expects to oper-
ate at a level higher than the lowest production
level identified in the permit. The notice shall
specify the anticipated level and the period during
which the permittee expects to operate at the alter-
nate level. If the notice covers more than one
month, the notice shall specify the reasons for the
anticipated production level increase. New notice
of discharge at alternate levels is required to cover
a period or production level not covered by prior
notice or, if during two consecutive months other-
wise covered by a notice, the production level at
the permitted facility does not in fact meet the
higher level designated in the notice.
(2) The permittee shall comply with the limita-
tions, standards, or prohibitions that correspond to
the lowest level of production specified in the per-
mit, unless the permittee has notified the Director
under paragraph (b)(2)(ii)(B)(7) of this section, in
which case the permittee shall comply with the
lower of the actual level of production during each
month or the level specified in the notice.
(3) The permittee shall submit with the DMR
the level of production that actually occurred dur-
ing each month and the limitations, standards, or
prohibitions applicable to that level of production.
(c) Metals. All permit effluent limitations,
standards, or prohibitions for a metal shall be ex-
pressed in terms of "total recoverable metal" as
defined in 40 CFR part 136 unless:
(1) An applicable effluent standard or limitation
has been promulgated under the CWA and speci-
fies the limitation for the metal in the dissolved or
valent or total form; or
(2) In establishing permit limitations on a case-
by-case basis under § 125.3, it is necessary to ex-
press the limitation on the metal in the dissolved
or valent or total form to carry out the provisions
of the CWA; or
(3) All approved analytical methods for the
metal inherently measure only its dissolved form
(e.g., hexavalent chromium).
(d) Continuous discharges. For continuous dis-
charges all permit effluent limitations, standards,
and prohibitions, including those necessary to
achieve water quality standards, shall unless im-
practicable be stated as:
(1) Maximum daily and average monthly dis-
charge limitations for all dischargers other than
publicly owned treatment works; and
(2) Average weekly and average monthly dis-
charge limitations for POTWs.
(e) Non-continuous discharges. Discharges
which are not continuous, as defined in § 122.2,
shall be particularly described and limited, consid-
ering the following factors, as appropriate:
(1) Frequency (for example, a batch discharge
shall not occur more than once every 3 weeks);
(2) Total mass (for example, not to exceed 100
kilograms of zinc and 200 kilograms of chromium
per batch discharge);
(3) Maximum rate of discharge of pollutants
during the discharge (for example, not to exceed
2 kilograms of zinc per minute); and
(4) Prohibition or limitation of specified pollut-
ants by mass, concentration, or other appropriate
measure (for example, shall not contain at any
time more than 0.1 mg/1 zinc or more than 250
grams (Vi kilogram) of zinc in any discharge).
(f) Mass limitations. (1) All pollutants limited in
permits shall have limitations, standards or prohi-
bitions expressed in terms of mass except:
(i) For pH, temperature, radiation, or other pol-
lutants which cannot appropriately be expressed by
mass;
49
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§122.46
(ii) When applicable standards and limitations
are expressed in terms of other units of measure-
ment; or
(iii) If in establishing permit limitations on a
case-by-case basis under § 125.3, limitations ex-
pressed in terms of mass are infeasible because the
mass of the pollutant discharged cannot be related
to a measure of operation (for example, discharges
of TSS from certain mining operations), and per-
mit conditions ensure that dilution will not be used
as a substitute for treatment.
(2) Pollutants limited in terms of mass addition-
ally may be limited in terms of other units of
measurement, and the permit shall require the per-
mittee to comply with both limitations.
(g) Pollutants in intake water. (1) Upon request
of the discharger, technology-based effluent limita-
tions or standards shall be adjusted to reflect credit
for pollutants in the discharger's intake water if:
(i) The applicable effluent limitations and stand-
ards contained in 40 CFR subchapter N specifi-
cally provide that they shall be applied on a net
basis; or
(ii) The discharger demonstrates that the control
system it proposes or uses to meet applicable tech-
nology-based limitations and standards would, if
properly installed and operated, meet the limita-
tions and standards in the absence of pollutants in
the intake waters.
(2) Credit for generic pollutants such as bio-
chemical oxygen demand (BOD) or total sus-
pended solids (TSS) should not be granted unless
the permittee demonstrates that the constituents of
the generic measure in the effluent are substan-
tially similar to the constituents of the generic
measure in the intake water or unless appropriate
additional limits are placed on process water pol-
lutants either at the outfall or elsewhere.
(3) Credit shall be granted only to the extent
necessary to meet the applicable limitation or
standard, up to a maximum value equal to the in-
fluent value. Additional monitoring may be nec-
essary to determine eligibility for credits and com-
pliance with permit limits.
(4) Credit shall be granted only if the discharger
demonstrates that the intake water is drawn from
the same body of water into which the discharge
is made. The Director may waive this requirement
if he finds that no environmental degradation will
result.
(5) This section does not apply to the discharge
of raw water clarifier sludge generated from the
treatment of intake water.
(h) Internal waste streams. (1) When permit ef-
fluent limitations or standards imposed at the point
of discharge are impractical or infeasible, effluent
limitations or standards for discharges of pollut-
ants may be imposed on internal waste streams be-
fore mixing with other waste streams or cooling
water streams. In those instances, the monitoring
required by § 122.44(i) shall also be applied to the
internal waste streams.
(2) Limits on internal waste streams will be im-
posed only when the fact sheet under § 124.56 sets
forth the exceptional circumstances which make
such limitations necessary, such as when the final
discharge point is inaccessible (for example, under
10 meters of water), the wastes at the point of dis-
charge are so diluted as to make monitoring im-
practicable, or the interferences among pollutants
at the point of discharge would make detection or
analysis impracticable.
(i) Disposal of pollutants into wells, into
POTWs or by land application. Permit limitations
and standards shall be calculated as provided in
§122.50.
[48 FR 14153, Apr. 1, 1983, as amended at 49 FR 38049,
Sept. 26, 1984; 50 FR 4514, Jan. 31, 1985; 54 FR 258,
Jan. 4, 1989; 54 FR 18784, May 2, 1989]
§122.46 Duration of permits (applica-
ble to State programs, see § 123.25).
(a) NPDES permits shall be effective for a fixed
term not to exceed 5 years.
(b) Except as provided in § 122.6, the term of
a permit shall not be extended by modification be-
yond the maximum duration specified in this sec-
tion.
(c) The Director may issue any permit for a du-
ration that is less than the full allowable term
under this section.
(d) A permit may be issued to expire on or after
the statutory deadline set forth in section 301(b)(2)
(A), (C), and (E), if the permit includes effluent
limitations to meet the requirements of section
301(b)(2) (A), (C), (D), (E) and (F), whether or
not applicable effluent limitations guidelines have
been promulgated or approved.
(e) A determination that a particular discharger
falls within a given industrial category for pur-
poses of setting a permit expiration date under
paragraph (d) of this section is not conclusive as
to the discharger's inclusion in that industrial cat-
egory for any other purposes, and does not preju-
dice any rights to challenge or change that inclu-
sion at the time that a permit based on that deter-
mination is formulated.
[48 FR 14153, Apr. 1, 1983, as amended at 49 FR 31842,
Aug. 8, 1984; 50 FR 6940, Feb. 19, 1985; 60 FR 33931,
June 29, 1995]
§ 122.47 Schedules of compliance.
(a) General (applicable to State programs, see
§123.25). The permit may, when appropriate,
specify a schedule of compliance leading to com-
pliance with CWA and regulations.
(1) Time for compliance. Any schedules of com-
pliance under this section shall require compliance
50
-------
§122.48
as soon as possible, but not later than the applica-
ble statutory deadline under the CWA.
(2) The first NPDES permit issued to a new
source or a new discharger shall contain a sched-
ule of compliance only when necessary to allow a
reasonable opportunity to attain compliance with
requirements issued or revised after commence-
ment of construction but less than three years be-
fore commencement of the relevant discharge. For
recommencing dischargers, a schedule of compli-
ance shall be available only when necessary to
allow a reasonable opportunity to attain compli-
ance with requirements issued or revised less than
three years before recommencement of discharge.
(3) Interim dates. Except as provided in para-
graph (b)(l)(ii) of this section, if a permit estab-
lishes a schedule of compliance which exceeds 1
year from the date of permit issuance, the schedule
shall set forth interim requirements and the dates
for their achievement.
(i) The time between interim dates shall not ex-
ceed 1 year, except that in the case of a schedule
for compliance with standards for sewage sludge
use and disposal, the time between interim dates
shall not exceed six months.
(ii) If the time necessary for completion of any
interim requirement (such as the construction of a
control facility) is more than 1 year and is not
readily divisible into stages for completion, the
permit shall specify interim dates for the submis-
sion of reports of progress toward completion of
the interim requirements and indicate a projected
completion date.
NOTE: Examples of interim requirements include: (a)
Submit a complete Step 1 construction grant (for
POTWs); (b) let a contract for construction of required fa-
cilities; (c) commence construction of required facilities;
(d) complete construction of required facilities.
(4) Reporting. The permit shall be written to re-
quire that no later than 14 days following each in-
terim date and the final date of compliance, the
permittee shall notify the Director in writing of its
compliance or noncompliance with the interim or
final requirements, or submit progress reports if
paragraph (a)(3)(ii) is applicable.
(b) Alternative schedules of compliance. An
NPDES permit applicant or permittee may cease
conducting regulated activities (by terminating of
direct discharge for NPDES sources) rather than
continuing to operate and meet permit
requriements as follows:
(1) If the permittee decides to cease conducting
regulated activities at a given time within the term
of a permit which has already been issued:
(i) The permit may be modified to contain a
new or additional schedule leading to timely ces-
sation of activities; or
(ii) The permittee shall cease conducting per-
mitted activities before non-compliance with any
interim or final compliance schedule requirement
already specified in the permit.
(2) If the decision to cease conducting regulated
activities is made before issuance of a permit
whose term will include the termination date, the
permit shall contain a schedule leading to termi-
nation which will ensure timely compliance with
applicable requirements no later than the statutory
deadline.
(3) If the permittee is undecided whether to
cease conducting regulated activities, the Director
may issue or modify a permit to contain two
schedules as follows:
(i) Both schedules shall contain an identical in-
terim deadline requiring a final decision on wheth-
er to cease conducting regulated activities no later
than a date which ensures sufficient time to com-
ply with applicable requirements in a timely man-
ner if the decision is to continue conducting regu-
lated activities;
(ii) One schedule shall lead to timely compli-
ance with applicable requirements, no later than
the statutory deadline;
(iii) The second schedule shall lead to cessation
of regulated activities by a date which will ensure
timely compliance with applicable requirements no
later than the statutory deadline.
(iv) Each permit containing two schedules shall
include a requirement that after the permittee has
made a final decision under paragraph (b)(3)(i) of
this section it shall follow the schedule leading to
compliance if the decision is to continue conduct-
ing regulated activities, and follow the schedule
leading to termination if the decision is to cease
conducting regulated activities.
(4) The applicant's or permittee's decision to
cease conducting regulated activities shall be evi-
denced by a firm public commitment satisfactory
to the Director, such as a resolution of the board
of directors of a corporation.
[48 FR 14153, Apr. 1, 1983, as amended at 49 FR 38050,
Sept. 26, 1984; 50 FR 6940, Feb. 19, 1985; 54 FR 18784,
May 2, 1989]
§122.48 Requirements for recording
and reporting of monitoring results
(applicable to State programs, see
§123.25).
All permits shall specify:
(a) Requirements concerning the proper use,
maintenance, and installation, when appropriate, of
monitoring equipment or methods (including bio-
logical monitoring methods when appropriate);
(b) Required monitoring including type, inter-
vals, and frequency sufficient to yield data which
are representative of the monitored activity includ-
ing, when appropriate, continuous monitoring;
(c) Applicable reporting requirements based
upon the impact of the regulated activity and as
51
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§122.49
specified in § 122.44. Reporting shall be no less
frequent than specified in the above regulation.
[48 FR 14153, Apr. 1, 1983; 50 FR 6940, Feb. 19, 1985]
Considerations under Federal
§122.49
law.
The following is a list of Federal laws that may
apply to the issuance of permits under these rules.
When any of these laws is applicable, its proce-
dures must be followed. When the applicable law
requires consideration or adoption of particular
permit conditions or requires the denial of a per-
mit, those requirements also must be followed.
(a) The Wild and Scenic Rivers Act, 16 U.S.C.
1273 et seq. section 7 of the Act prohibits the Re-
gional Administrator from assisting by license or
otherwise the construction of any water resources
project that would have a direct, adverse effect on
the values for which a national wild and scenic
river was established.
(b) The National Historic Preservation Act of
1966, 16 U.S.C. 470 et seq. section 106 of the Act
and implementing regulations (36 CFR part 800)
require the Regional Administrator, before issuing
a license, to adopt measures when feasible to miti-
gate potential adverse effects of the licensed activ-
ity and properties listed or eligible for listing in
the National Register of Historic Places. The Act's
requirements are to be implemented in cooperation
with State Historic Preservation Officers and upon
notice to, and when appropriate, in consultation
with the Advisory Council on Historic Preserva-
tion.
(c) The Endangered Species Act, 16 U.S.C.
1531 et seq. section 7 of the Act and implement-
ing regulations (50 CFR part 402) require the Re-
gional Administrator to ensure, in consultation
with the Secretary of the Interior or Commerce,
that any action authorized by EPA is not likely to
jeopardize the continued existence of any endan-
gered or threatened species or adversely affect its
critical habitat.
(d) The Coastal Zone Management Act, 16
U.S.C. 1451 et seq. section 307(c) of the Act and
implementing regulations (15 CFR part 930) pro-
hibit EPA from issuing a permit for an activity af-
fecting land or water use in the coastal zone until
the applicant certifies that the proposed activity
complies with the State Coastal Zone Management
program, and the State or its designated agency
concurs with the certification (or the Secretary of
Commerce overrides the State's nonconcurrence).
(e) The Fish and Wildlife Coordination Act, 16
U.S.C. 661 et seq., requires that the Regional Ad-
ministrator, before issuing a permit proposing or
authorizing the impoundment (with certain exemp-
tions), diversion, or other control or modification
of any body of water, consult with the appropriate
State agency exercising jurisdiction over wildlife
resources to conserve those resources.
(f) Executive orders. [Reserved]
(g) The National Environmental Policy Act, 42
U.S.C. 4321 et seq., may require preparation of an
Environmental Impact Statement and consideration
of ElS-related permit conditions (other than efflu-
ent limitations) as provided in § 122.29(c).
(Clean Water Act (33 U.S.C. 1251 et seq.), Safe Drinking
Water Act (42 U.S.C. 300f et seq.), Clean Air Act (42
U.S.C. 7401 et seq.), Resource Conservation and Recov-
ery Act (42 U.S.C. 6901 et seq.))
[48 FR 14153, Apr. 1, 1983, as amended at 48 FR 39620,
Sept. 1, 1983; 49 FR 38050, Sept. 26, 1984]
§122.50 Disposal of pollutants into
wells, into publicly owned treat-
ment works or by land application
(applicable to State NPDES pro-
grams, see §123.25).
(a) When part of a discharger's process
wastewater is not being discharged into waters of
the United States or contiguous zone because it is
disposed into a well, into a POTW, or by land ap-
plication thereby reducing the flow or level of pol-
lutants being discharged into waters of the United
States, applicable effluent standards and limita-
tions for the discharge in an NPDES permit shall
be adjusted to reflect the reduced raw waste result-
ing from such disposal. Effluent limitations and
standards in the permit shall be calculated by one
of the following methods:
(1) If none of the waste from a particular proc-
ess is discharged into waters of the United States,
and effluent limitations guidelines provide separate
allocation for wastes from that process, all alloca-
tions for the process shall be eliminated from cal-
culation of permit effluent limitations or standards.
(2) In all cases other than those described in
paragraph (a)(l) of this section, effluent limitations
shall be adjusted by multiplying the effluent limi-
tation derived by applying effluent limitation
guidelines to the total waste stream by the amount
of wastewater flow to be treated and discharged
into waters of the United States, and dividing the
result by the total wastewater flow. Effluent limi-
tations and standards so calculated may be further
adjusted under part 125, subpart D to make them
more or less stringent if discharges to wells, pub-
licly owned treatment works, or by land applica-
tion change the character or treatability of the pol-
lutants being discharged to receiving waters. This
method may be algebraically expressed as:
ExN
P=
where P is the permit effluent limitation, E is the
limitation derived by applying effluent guidelines
52
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§122.62
to the total wastestream, N is the wastewater flow
to be treated and discharged to waters of the Unit-
ed States, and T is the total wastewater flow.
(b) Paragraph (a) of this section does not apply
to the extent that promulgated effluent limitations
guidelines:
(1) Control concentrations of pollutants dis-
charged but not mass; or
(2) Specify a different specific technique for ad-
justing effluent limitations to account for well in-
jection, land application, or disposal into POTWs.
(c) Paragraph (a) of this section does not alter
a discharger's obligation to meet any more strin-
gent requirements established under §§ 122.41,
122.42, 122.43, and 122.44.
[48 FR 14153, Apr. 1, 1983, as amended at 49 FR 38050,
Sept. 26, 1984]
Subpart D—Transfer, Modification,
Revocation and Reissuance,
and Termination of Permits
§122.61 Transfer of permits (applica-
ble to State programs, see § 123.25).
(a) Transfers by modification. Except as pro-
vided in paragraph (b) of this section, a permit
may be transferred by the permittee to a new
owner or operator only if the permit has been
modified or revoked and reissued (under
§ 122.62(b)(2)), or a minor modification made
(under § 122.63(d)), to identify the new permittee
and incorporate such other requirements as may be
necessary under CWA.
(b) Automatic transfers. As an alternative to
transfers under paragraph (a) of this section, any
NPDES permit may be automatically transferred to
a new permittee if:
(1) The current permittee notifies the Director at
least 30 days in advance of the proposed transfer
date in paragraph (b)(2) of this section;
(2) The notice includes a written agreement be-
tween the existing and new permittees containing
a specific date for transfer of permit responsibility,
coverage, and liability between them; and
(3) The Director does not notify the existing
permittee and the proposed new permittee of his
or her intent to modify or revoke and reissue the
permit. A modification under this subparagraph
may also be a minor modification under § 122.63.
If this notice is not received, the transfer is effec-
tive on the date specified in the agreement men-
tioned in paragraph (b)(2) of this section.
§122.62 Modification or revocation
and reissuance of permits (applica-
ble to State programs, see § 123.25).
When the Director receives any information (for
example, inspects the facility, receives information
submitted by the permittee as required in the per-
mit (see § 122.41), receives a request for modifica-
tion or revocation and reissuance under § 124.5, or
conducts a review of the permit file) he or she
may determine whether or not one or more of the
causes listed in paragraphs (a) and (b) of this sec-
tion for modification or revocation and reissuance
or both exist. If cause exists, the Director may
modify or revoke and reissue the permit accord-
ingly, subject to the limitations of § 124.5(c), and
may request an updated application if necessary.
When a permit is modified, only the conditions
subject to modification are reopened. If a permit
is revoked and reissued, the entire permit is re-
opened and subject to revision and the permit is
reissued for a new term. See § 124.5(c)(2). If
cause does not exist under this section or § 122.63,
the Director shall not modify or revoke and re-
issue the permit. If a permit modification satisfies
the criteria in §122.63 for "minor modifications"
the permit may be modified without a draft permit
or public review. Otherwise, a draft permit must
be prepared and other procedures in part 124 (or
procedures of an approved State program) fol-
lowed.
(a) Causes for modification. The following are
causes for modification but not revocation and
reissuance of permits except when the permittee
requests or agrees.
(1) Alterations. There are material and substan-
tial alterations or additions to the permitted facility
or activity (including a change or changes in the
permittee's sludge use or disposal practice) which
occurred after permit issuance which justify the
application of permit conditions that are different
or absent in the existing permit.
NOTE: Certain reconstruction activities may cause the
new source provisions of § 122.29 to be applicable.
(2) Information. The Director has received new
information. Permits may be modified during their
terms for this cause only if the information was
not available at the time of permit issuance (other
than revised regulations, guidance, or test meth-
ods) and would have justified the application of
different permit conditions at the time of issuance.
For NPDES general permits (§ 122.28) this cause
includes any information indicating that cumu-
lative effects on the environment are unacceptable.
For new source or new discharger NPDES permits
§§122.21, 122.29), this cause shall include any
significant information derived from effluent test-
ing required under § 122.21(k)(5)(vi) or
§ 122.21(h)(4)(iii) after issuance of the permit.
(3) New regulations. The standards or regula-
tions on which the permit was based have been
changed by promulgation of amended standards or
regulations or by judicial decision after the permit
was issued. Permits may be modified during their
terms for this cause only as follows:
53
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§122.62
(i) For promulgation of amended standards or
regulations, when:
(A) The permit condition requested to be modi-
fied was based on a promulgated effluent limita-
tion guideline, EPA approved or promulgated
water quality standards, or the Secondary Treat-
ment Regulations under part 133; and
(B) EPA has revised, withdrawn, or modified
that portion of the regulation or effluent limitation
guideline on which the permit condition was
based, or has approved a State action with regard
to a water quality standard on which the permit
condition was based; and
(C) A permittee requests modification in accord-
ance with §124.5 within ninety (90) days after
FEDERAL REGISTER notice of the action on which
the request is based.
(ii) For judicial decisions, a court of competent
jurisdiction has remanded and stayed EPA promul-
gated regulations or effluent limitation guidelines,
if the remand and stay concern that portion of the
regulations or guidelines on which the permit con-
dition was based and a request is filed by the per-
mittee in accordance with § 124.5 within ninety
(90) days of judicial remand.
(iii) For changes based upon modified State cer-
tifications of NPDES permits, see § 124.55(b).
(4) Compliance schedules. The Director deter-
mines good cause exists for modification of a
compliance schedule, such as an act of God,
strike, flood, or materials shortage or other events
over which the permittee has little or no control
and for which there is no reasonably available
remedy. However, in no case may an NPDES
compliance schedule be modified to extend be-
yond an applicable CWA statutory deadline. See
also § 122.63(c) (minor modifications) and para-
graph (a)(14) of this section (NPDES innovative
technology).
(5) When the permittee has filed a request for
a variance under CWA section 301(c), 301(g),
301(h), 301(i), 301(k), or 316(a) or for "fun-
damentally different factors" within the time spec-
ified in § 122.21 or § 125.27(a).
(6) 307(a) toxics. When required to incorporate
an applicable 307(a) toxic effluent standard or pro-
hibition (see § 122.44(b)).
(7) Reopener. When required by the ' 'reopener''
conditions in a permit, which are established in the
permit under § 122.44(b) (for CWA toxic effluent
limitations and standards for sewage sludge use or
disposal, see also § 122.44(c)) or 40 CFR
§ 403.10(e) (pretreatment program).
(8)(i) Net limits. Upon request of a permittee
who qualifies for effluent limitations on a net
basis under § 122.45(h).
(ii) When a discharger is no longer eligible for
net limitations, as provided in
§ 122.45(h)(l)(ii)(B).
(9) Pretreatment. As necessary under 40 CFR
403.8(e) (compliance schedule for development of
pretreatment program).
(10) Failure to notify. Upon failure of an ap-
proved State to notify, as required by section
402(b)(3), another State whose waters may be af-
fected by a discharge from the approved State.
(11) Non-limited pollutants. When the level of
discharge of any pollutant which is not limited in
the permit exceeds the level which can be
achieved by the technology-based treatment re-
quirements appropriate to the permittee under
§ 125.3(c).
(12) Notification levels. To establish a "notifi-
cation level" as provided in § 122.44(f).
(13) Compliance schedules. To modify a sched-
ule of compliance to reflect the time lost during
construction of an innovative or alternative facil-
ity, in the case of a POTW which has received a
grant under section 202(a)(3) of CWA for 100%
of the costs to modify or replace facilities con-
structed with a grant for innovative and alternative
wastewater technology under section 202(a)(2). In
no case shall the compliance schedule be modified
to extend beyond an applicable CWA statutory
deadline for compliance.
(14) [Reserved]
(15) To correct technical mistakes, such as er-
rors in calculation, or mistaken interpretations of
law made in determining permit conditions.
(16) When the discharger has installed the treat-
ment technology considered by the permit writer
in setting effluent limitations imposed under sec-
tion 402(a)(l) of the CWA and has properly oper-
ated and maintained the facilities but nevertheless
has been unable to achieve those effluent limita-
tions. In this case, the limitations in the modified
permit may reflect the level of pollutant control
actually achieved (but shall not be less stringent
than required by a subsequently promulgated efflu-
ent limitations guideline).
(17) [Reserved]
(18) Land application plans. When required by
a permit condition to incorporate a land applica-
tion plan for beneficial reuse of sewage sludge, to
revise an existing land application plan, or to add
a land application plan.
(b) Causes for modification or revocation and
reissuance. The following are causes to modify or,
alternatively, revoke and reissue a permit:
(1) Cause exists for termination under § 122.64,
and the Director determines that modification or
revocation and reissuance is appropriate.
(2) The Director has received notification (as re-
quired in the permit, see § 122.41(1)(3)) of a pro-
posed transfer of the permit. A permit also may be
modified to reflect a transfer after the effective
date of an automatic transfer (§ 122.61(b)) but will
not be revoked and reissued after the effective
54
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Pt. 122, App. A
date of the transfer except upon the request of the
new permittee.
[48 FR 14153, Apr. 1, 1983, as amended at 49 FR 25981,
June 25, 1984; 49 FR 37009, Sept. 29, 1984; 49 FR
38050, Sept. 26, 1984; 50 FR4514, Jan. 31, 1985; 51 FR
20431, June 4, 1986; 51 FR 26993, July 28, 1986; 54 FR
256, 258, Jan. 4, 1989; 54 FR 18784, May 2, 1989; 60
FR 33931, June 29, 1995]
§122.63 Minor modifications of per-
mits.
Upon the consent of the permittee, the Director
may modify a permit to make the corrections or
allowances for changes in the permitted activity
listed in this section, without following the proce-
dures of part 124. Any permit modification not
processed as a minor modification under this sec-
tion must be made for cause and with part 124
draft permit and public notice as required in
§ 122.62. Minor modifications may only:
(a) Correct typographical errors;
(b) Require more frequent monitoring or report-
ing by the permittee;
(c) Change an interim compliance date in a
schedule of compliance, provided the new date is
not more than 120 days after the date specified in
the existing permit and does not interfere with at-
tainment of the final compliance date requirement;
or
(d) Allow for a change in ownership or oper-
ational control of a facility where the Director de-
termines that no other change in the permit is nec-
essary, provided that a written agreement contain-
ing a specific date for transfer of permit respon-
sibility, coverage, and liability between the current
and new permittees has been submitted to the Di-
rector.
(e)(l) Change the construction schedule for a
discharger which is a new source. No such change
shall affect a discharger's obligation to have all
pollution control equipment installed and in oper-
ation prior to discharge under § 122.29.
(2) Delete a point source outfall when the dis-
charge from that outfall is terminated and does not
result in discharge of pollutants from other outfalls
except in accordance with permit limits.
(f) [Reserved]
(g) Incorporate conditions of a POTW
pretreatment program that has been approved in
accordance with the procedures in 40 CFR 403.11
(or a modification thereto that has been approved
in accordance with the procedures in 40 CFR
403.18) as enforceable conditions of the POTW's
permits.
[48 FR 14153, Apr. 1, 1983, as amended at 49 FR 38051,
Sept. 26, 1984; 51 FR 20431, June 4, 1986; 53 FR 40616,
Oct. 17, 1988; 60 FR 33931, June 29, 1995]
§122.64 Termination of permits (ap-
rlicable to State programs, see
123.25).
(a) The following are causes for terminating a
permit during its term, or for denying a permit re-
newal application:
(1) Noncompliance by the permittee with any
condition of the permit;
(2) The permittee's failure in the application or
during the permit issuance process to disclose
fully all relevant facts, or the permittee's misrepre-
sentation of any relevant facts at any time;
(3) A determination that the permitted activity
endangers human health or the environment and
can only be regulated to acceptable levels by per-
mit modification or termination; or
(4) A change in any condition that requires ei-
ther a temporary or permanent reduction or elimi-
nation of any discharge or sludge use or disposal
practice controlled by the permit (for example,
plant closure or termination of discharge by con-
nection to a POTW).
(b) The Director shall follow the applicable pro-
cedures in part 124 or State procedures in termi-
nating any NPDES permit under this section.
[48 FR 14153, Apr. 1, 1983; 50 FR 6940, Feb. 19, 1985,
as amended at 54 FR 18784, May 2, 1989]
APPENDIX A TO PART 122—NPDES PRIMARY
INDUSTRY CATEGORIES
Any permit issued after June 30, 1981 to dischargers
in the following categories shall include effluent limita-
tions and a compliance schedule to meet the requirements
of section 301(b)(2)(A), (C), (D), (E) and (F) of CWA,
whether or not applicable effluent limitations guidelines
have been promulgated. See §§ 122.44 and 122.46.
Industry Category
Adhesives and sealants
Aluminum forming
Auto and other laundries
Battery manufacturing
Coal mining
Coil coating
Copper forming
Electrical and electronic components
Electroplating
Explosives manufacturing
Foundries
Gum and wood chemicals
Inorganic chemicals manufacturing
Iron and steel manufacturing
Leather tanning and finishing
Mechanical products manufacturing
Nonferrous metals manufacturing
Ore mining
Organic chemicals manufacturing
Paint and ink formulation
Pesticides
Petroleum refining
Pharmaceutical preparations
Photographic equipment and supplies
55
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Pt. 122, App. B
Plastics processing
Plastic and synthetic materials manufacturing
Porcelain enameling
Printing and publishing
Pulp and paper mills
Rubber processing
Soap and detergent manufacturing
Steam electric power plants
Textile mills
Timber products processing
APPENDIX B TO PART 122—CRITERIA FOR DETER-
MINING A CONCENTRATED ANIMAL FEEDING
OPERATION (§ 122.23)
An animal feeding operation is a concentrated animal
feeding operation for purposes of § 122.23 if either of the
following criteria are met.
(a) More than the numbers of animals specified in any
of the following categories are confined:
(1) 1,000 slaughter and feeder cattle,
(2) 700 mature dairy cattle (whether milked or dry
cows),
(3) 2,500 swine each weighing over 25 kilograms (ap-
proximately 55 pounds),
(4) 500 horses,
(5) 10,000 sheep or lambs,
(6) 55,000 turkeys,
(7) 100,000 laying hens or broilers (if the facility has
continuous overflow watering),
(8) 30,000 laying hens or broilers (if the facility has a
liquid manure system),
(9) 5,000 ducks, or
(10) 1,000 animal units; or
(b) More than the following number and types of ani-
mals are confined:
(1) 300 slaughter or feeder cattle,
(2) 200 mature dairy cattle (whether milked or dry
cows),
(3) 750 swine each weighing over 25 kilograms (ap-
proximately 55 pounds),
(4) 150 horses,
(5) 3,000 sheep or lambs,
(6) 16,500 turkeys,
(7) 30,000 laying hens or broilers (if the facility has
continuous overflow watering),
(8) 9,000 laying hens or broilers (if the facility has a
liquid manure handling system),
(9) 1,500 ducks, or
(10) 300 animal units;
and either one of the following conditions are met: pollut-
ants are discharged into navigable waters through a man-
made ditch, flushing system or other similar man-made
device; or pollutants are discharged directly into waters of
the United States which originate outside of and pass
over, across, or through the facility or otherwise come
into direct contact with the animals confined in the oper-
ation.
Provided, however, that no animal feeding operation is
a concentrated animal feeding operation as defined above
if such animal feeding operation discharges only in the
event of a 25 year, 24-hour storm event.
The term animal unit means a unit of measurement for
any animal feeding operation calculated by adding the fol-
lowing numbers: the number of slaughter and feeder cat-
tle multiplied by 1.0, plus the number of mature dairy cat-
tle multiplied by 1.4, plus the number of swine weighing
over 25 kilograms (approximately 55 pounds) multiplied
by 0.4, plus the number of sheep multiplied by 0.1, plus
the number of horses multiplied by 2.0.
The term manmade means constructed by man and
used for the purpose of transporting wastes.
APPENDIX C TO PART 122—CRITERIA FOR DETER-
MINING A CONCENTRATED AQUATIC ANIMAL
PRODUCTION FACILITY (§ 122.24)
A hatchery, fish farm, or other facility is a concentrated
aquatic animal production facility for purposes of
§ 122.24 if it contains, grows, or holds aquatic animals in
either of the following categories:
(a) Cold water fish species or other cold water aquatic
animals in ponds, raceways, or other similar structures
which discharge at least 30 days per year but does not in-
clude:
(1) Facilities which produce less than 9,090 harvest
weight kilograms (approximately 20,000 pounds) of
aquatic animals per year; and
(2) Facilities which feed less than 2,272 kilograms (ap-
proximately 5,000 pounds) of food during the calendar
month of maximum feeding.
(b) Warm water fish species or other warm water
aquatic animals in ponds, raceways, or other similar struc-
tures which discharge at least 30 days per year, but does
not include:
(1) Closed ponds which discharge only during periods
of excess runoff; or
(2) Facilities which produce less than 45,454 harvest
weight kilograms (approximately 100,000 pounds) of
aquatic animals per year.
"Cold water aquatic animals" include, but are not lim-
ited to, the Salmonidae family of fish; e.g., trout and
salmon.
"Warm water aquatic animals" include, but are not
limited to, the Ameiuride, Centrarchidae and Cyprinidae
families of fish; e.g., respectively, catfish, sunfish and
minnows.
APPENDIX D TO PART 122—NPDES PERMIT
APPLICATION TESTING REQUIREMENTS (§ 122.21)
TABLE I—TESTING REQUIREMENTS FOR ORGANIC
Toxic POLLUTANTS BY INDUSTRIAL CAT-
EGORY FOR EXISTING DISCFIARGERS
Industrial category
Adhesives and
Sealants
Aluminum Forming
Auto and Other Laun-
dries
Battery Manufacturing
Coal Mining
Coil Coating
Copper Forming
Electric and Electronic
Components
Electroplating
Explosives Manufac-
turing
Foundries
Gum and Wood
Chemicals
GC/MS Fraction 1
Volatile
2
2
2
2
2
2
2
2
2
2
2
Acid
2
2
2
2
2
2
2
2
2
2
2
Base/
neutral
2
2
2
2
2
2
2
2
2
2
2
2
Pes-
ticide
2
2
2
2
56
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Pt. 122, App. D
Industrial category
Inorganic Chemicals
Manufacturing
Iron and Steel Manu-
facturing
Leather Tanning and
Finishing
Mechanical Products
Manufacturing
Nonferrous Metals
Manufacturing
Ore Mining
Organic Chemicals
Manufacturing
Paint and Ink Formu-
lation
Pesticides
Petroleum Refining ....
Pharmaceutical Prep-
arations
Photographic Equip-
ment and Supplies .
Plastic and Synthetic
Materials Manufac-
turing
Plastic Processing
Porcelain Enameling ..
Printing and Publish-
ing
Pulp and Paper Mills ..
Rubber Processing ....
Soap and Detergent
Manufacturing
Steam Electric Power
Plants
Textile Mills
Timber Products Proc-
essina
GC/MS Fraction 1
Volatile
2
2
2
2
2
2
2
2
2
2
2
2
2
2
2
2
2
2
2
2
2
2
Acid
2
2
2
2
2
2
2
2
2
2
2
2
2
2
2
2
2
2
2
2
Base/
neutral
2
2
2
2
2
2
2
2
2
2
2
2
2
2
2
2
2
2
2
2
2
Pes-
ticide
2
2
2
2
2
2
2
2
2
2
2
2
2
2
tetrachloroethylene
toluene
1,2-trans-dichloroethylene
1,1,1 -trichloro ethane
1,1,2-trichloro ethane
trichloro ethylene
1 The toxic pollutants in each fraction are listed in Table II.
2Testing required.
TABLE II — ORGANIC Toxic POLLUTANTS IN EACH
OF FOUR FRACTIONS IN ANALYSIS BY GAS
CHROMATOGRAPHY/MASS SPECTROSCOPY
(GS/MS)
IV acrolein
2V acrylonitrile
3V benzene
5V bromoform
6V carbon tetrachloride
7V chlorobenzene
8V chlorodibromomethane
9V chloroethane
10V 2-chloroethylvinyl ether
1 IV chloroform
1 2V dichlorobromomethane
1 4V 1 , 1 -dichloro ethane
1 5V 1 ,2-dichloroethane
1 6V 1 , 1 -dichloro ethylene
1 7V 1 ,2-dichloropropane
1 8V 1 ,3-dichloropropylene
19V ethylbenzene
20V methyl bromide
21V methyl chloride
22V methylene chloride
23V 1 , 1 ,2,2-tetrachloroethane
31V vinyl chloride
czW Compounds
1A 2-chlorophenol
2A 2,4-dichlorophenol
3A 2,4-dimethylphenol
4A 4,6-dinitro-o-cresol
5A 2,4-dinitrophenol
6A 2-nitrophenol
7A 4-nitrophenol
8A p-chloro-m-cresol
9A pentachlorophenol
1 OA phenol
1 1A 2,4,6-trichlorophenol
IB acenaphthene
2B acenaphthylene
3B anthracene
4B benzidine
5B benzo(a)anthracene
6B benzo(a)pyrene
7B 3,4-benzofluoranthene
SB benzo(ghi)perylene
9B benzo(k)fluoranthene
1 OB bis (2- chloroethoxy)m ethane
1 IB bis(2-chloroethyl)ether
1 2B bis(2-chloroisopropyl)ether
13B bis (2-ethylhexyl)phthalate
14B 4-bromophenyl phenyl ether
15B butylbenzyl phthalate
1 6B 2-chloronaphthalene
17B 4-chlorophenyl phenyl ether
1 8B chrysene
1 9B dibenzo(a,h)anthracene
20B 1,2-dichlorobenzene
2 IB 1,3-dichlorobenzene
22B 1 ,4-dichlorobenzene
23B 3,3'-dichlorobenzidine
24B diethyl phthalate
25B dimethyl phthalate
26B di-n-butyl phthalate
27B 2,4-dinitrotoluene
2 SB 2, 6-dinitrotoluene
29B di-n-octyl phthalate
30B 1,2-diphenylhydrazine (as azobenzene)
3 IB fluroranthene
32B fluorene
33B hexachlorobenzene
34B hexachlorobutadiene
35B hexachlorocyclopentadiene
3 6B hexachloroethane
37B indeno(l,2,3-cd)pyrene
3 SB isophorone
39B napthalene
40B nitrobenzene
41B N-nitrosodimethylamine
42B N-nitrosodi-n-propylamine
43B N-nitrosodiphenylamine
44B phenanthrene
57
-------
Pt. 122, App. D
45B pyrene
46B 1,2,4-trichlorobenzene
Pesticides
IP
2P
3P
4P
5P
6P
7P
8P
9P
10P
IIP
12P
13P
14P
15P
16P
17P
18P
19P
20P
21P
22P
23P
24P
25P
aldrin
alpha-BHC
beta-BHC
gamma-BHC
delta-BHC
chlordane
4,4'-DDT
4,4'-DDE
4,4'-DDD
dieldrin
alpha-endosulfan
beta-endosulfan
endosulfan sulfate
endrin
endrin aldehyde
heptachlor
heptachlor epoxide
PCB-1242
PCB-1254
PCB-1221
PCB-1232
PCB-1248
PCB-1260
PCB-1016
toxaphene
TABLE III—OTHER Toxic POLLUTANTS (METALS
AND CYANIDE) AND TOTAL PHENOLS
Antimony, Total
Arsenic, Total
Beryllium, Total
Cadmium, Total
Chromium, Total
Copper, Total
Lead, Total
Mercury, Total
Nickel, Total
Selenium, Total
Silver, Total
Thallium, Total
Zinc, Total
Cyanide, Total
Phenols, Total
TABLE IV—CONVENTIONAL AND
NONCONVENTIONAL POLLUTANTS REQUIRED
To BE TESTED BY EXISTING DISCHARGERS IF
EXPECTED TO BE PRESENT
Bromide
Chlorine, Total Residual
Color
Fecal Coliform
Fluoride
Nitrate-Nitrite
Nitrogen, Total Organic
Oil and Grease
Phosphorus, Total
Radioactivity
Sulfate
Sulfide
Sulfite
Surfactants
Aluminum, Total
Barium, Total
Boron, Total
Cobalt, Total
Iron, Total
Magnesium, Total
Molybdenum, Total
Manganese, Total
Tin, Total
Titanium, Total
TABLE V—Toxic POLLUTANTS AND HAZARDOUS
SUBSTANCES REQUIRED To BE IDENTIFIED
BY EXISTING DISCHARGERS IF EXPECTED To
BE PRESENT
Asbestos
Toxic Pollutants
Hazardous Substances
Acetaldehyde
Allyl alcohol
Allyl chloride
Amyl acetate
Aniline
Benzonitrile
Benzyl chloride
Butyl acetate
Butylamine
Captan
Carbaryl
Carbofuran
Carbon disulfide
Chlorpyrifos
Coumaphos
Cresol
Crotonaldehyde
Cyclohexane
2,4-D (2,4-Dichlorophenoxy acetic acid)
Diazinon
Dicamba
Dichlobenil
Dichlone
2,2-Dichloropropionic acid
Dichlorvos
Diethyl amine
Dimethyl amine
Dintrobenzene
Diquat
Disulfoton
Diuron
Epichlorohydrin
Ethion
Ethylene diamine
Ethylene dibromide
Formaldehyde
Furfural
Guthion
Isoprene
Isopropanolamine Dodecylbenzenesulfonate
Kelthane
Kepone
Malathion
Mer c apto dimethur
Methoxychlor
58
-------
Pt. 122, App. D
Methyl mercaptan
Methyl methacrylate
Methyl parathion
Mevinphos
Mexacarbate
Monoethyl amine
Monomethyl amine
Naled
Napthenic acid
Nitrotoluene
Parathion
Phenolsulfanate
Phosgene
Propargite
Propylene oxide
Pyrethrins
Quinoline
Resorcinol
Strontium
Strychnine
Styrene
2,4,5-T (2,4,5-Trichlorophenoxy acetic acid)
TDE (Tetrachlorodiphenylethane)
2,4,5-TP [2-(2,4,5-Trichlorophenoxy) propanoic acid]
Trichlorofan
Triethanol amine dodecylbenzenesulfonate
Triethylamine
Trimethylamine
Uranium
Vanadium
Vinyl acetate
Xylene
Xylenol
Zirconium
[Note 1: The Environmental Protection Agency has
suspended the requirements of § 122.21(g)(7)(ii)(A) and
Table I of Appendix D as they apply to certain industrial
categories. The suspensions are as follows:
a. At 46 FR 2046, Jan. 8, 1981, the Environmental Pro-
tection Agency suspended until further notice
§ 122.21(g)(7)(n)(A) as it applies to coal mines.
b. At 46 FR 22585, Apr. 20, 1981, the Environmental
Protection Agency suspended until further notice
§ 122.21(g)(7)(ii)(A) and the corresponding portions of
Item V-C of the NPDES application Form 2c as they
apply to:
1. Testing and reporting for all four organic fractions
in the Greige Mills Subcategory of the Textile Mills in-
dustry (Subpart C—Low water use processing of 40 CFR
part 410), and testing and reporting for the pesticide frac-
tion in all other subcategories of this industrial category.
2. Testing and reporting for the volatile, base/neutral
and pesticide fractions in the Base and Precious Metals
Subcategory of the Ore Mining and Dressing industry
(subpart B of 40 CFR part 440), and testing and reporting
for all four fractions in all other subcategories of this in-
dustrial category.
3. Testing and reporting for all four GC/MS fractions
in the Porcelain Enameling industry.
c. At 46 FR 35090, July 1, 1981, the Environmental
Protection Agency suspended until further notice
§ 122.21(g)(7)(ii)(A) and the corresponding portions of
Item V-C of the NPDES application Form 2c as they
apply to:
1. Testing and reporting for the pesticide fraction in the
Tall Oil Rosin Subcategory (subpart D) and Rosin-Based
Derivatives Subcategory (subpart F) of the Gum and
Wood Chemicals industry (40 CFR part 454), and testing
and reporting for the pesticide and base/netural fractions
in all other subcategories of this industrial category.
2. Testing and reporting for the pesticide fraction in the
Leather Tanning and Finishing, Paint and Ink Formula-
tion, and Photographic Supplies industrial categories.
3. Testing and reporting for the acid, base/neutral and
pesticide fractions in the Petroleum Refining industrial
category.
4. Testing and reporting for the pesticide fraction in the
Papergrade Sulfite subcategories (subparts J and U) of the
Pulp and Paper industry (40 CFR part 430); testing and
reporting for the base/neutral and pesticide fractions in the
following subcategories: Deink (subpart Q), Dissolving
Kraft (subpart F), and Paperboard from Waste Paper (sub-
part E); testing and reporting for the volatile, base/neutral
and pesticide fractions in the following subcategories:
BCT Bleached Kraft (subpart H), Semi-Chemical (sub-
parts B and C), and Nonintegrated-Fine Papers (subpart
R); and testing and reporting for the acid, base/neutral,
and pesticide fractions in the following subcategories:
Fine Bleached Kraft (subpart I), Dissolving Sulfite Pulp
(subpart K), Groundwood-Fine Papers (subpart O), Mar-
ket Bleached Kraft (subpart G), Tissue from Wastepaper
(subpart T), and Nonintegrated-Tissue Papers (subpart S).
5. Testing and reporting for the base/neutral fraction in
the Once-Through Cooling Water, Fly Ash and Bottom
Ash Transport Water process wastestreams of the Steam
Electric Power Plant industrial category.
This revision continues these suspensions.]*
For the duration of the suspensions, therefore, Table I
effectively reads:
TABLE I—TESTING REQUIREMENTS FOR OR-
GANIC Toxic POLLUTANTS BY INDUSTRY CAT-
EGORY
Industry category
Adhesives and sealants
Aluminum forming
Auto and other laundries ...
Battery manufacturing
Coal mining
Coil coating
Copper forming
Electric and electronic com-
pounds
Electroplating
Explosives manufacturing ..
Foundries
Gum and wood (all sub-
parts except D and F) ....
Subpart D — tall oil rosin
Subpart F — rosin-based de-
rivatives
Inorganic chemicals manu-
facturing
Iron and steel manufactur-
ing
Leather tanning and finish-
ing
Mechanical products manu-
facturina
GC/MS fraction 2
Vola-
tile
(1)
(1)
(1)
(1)
(1)
(1)
(1)
(1)
(1)
(1)
(1)
(1)
(1)
(1)
(1)
PI
Acid
(1)
(1)
(1)
(1)
(1)
(1)
(1)
(1)
(1)
(1)
(1)
(1)
(1)
(1)
(1)
(11
Neu-
tral
(1)
(1)
(1)
(1)
(1)
(1)
(1)
(1)
(1)
(1)
(1)
(1)
(1)
(1)
(1)
PI
Pes-
ticide
(1)
(1)
*Editorial Note: The words "This revision" refer to
the document published at 48 FR 14153, Apr. 1, 1983.
59
-------
Pt. 122, App. E
TABLE I—TESTING REQUIREMENTS FOR OR-
GANIC Toxic POLLUTANTS BY INDUSTRY CAT-
EGORY—Continued
2The pollutants in each fraction are listed in Item V-C.
3 Pulp and Paperboard Mills:
Industry category
Nonferrous metals manu-
facturing
Ore mining (applies to the
base and precious met-
als/Subpart B)
Organic chemicals manu-
facturing
Paint and ink formulation ...
Pharmaceutical prepara-
Photographic equipment
and supplies
Plastic and synthetic mate-
rials manufacturing
Plastic processing
Porcelain enameling
Printing and publishing
Pulp and paperboard
mills — see footnote3
Soap and detergent manu-
Steam electric power plants
Textile mills (Subpart C—
Greige Mills are exempt
from this table)
Timber products processing
GC/MS fraction 2
Vola-
tile
(1)
(1)
(1)
(1)
(?
Acid
(1)
(1)
(1)
(1)
9
Neu-
tral
(1)
(1)
(1)
(1)
Pes-
ticide
(1)
Subpart 3
A
B
C
D
E
F
G
H
I
J
K
L
M
N
0
P
Q
R
s
T
U
GS/MS fractions
VOA
2
2
2
2
0)
(1)
(1)
0)
(1)
0)
(1)
0)
(1)
m
(1)
2
(1)
(1)
m
Acid
,,,
(1)
(1)
p\
(1)
(1)
p\
(1)
n\
(1)
(1)
n\
(i)
n\
(1)
m
(1)
(1)
n\
(1)
m
Base/
neu-
tral
2
2
2
2
2
2
2
2
2
P)
2
2
2
2
2
2
2
2
2
2
PI
Pes-
ti-
cides
P)
2
2
2
(1)
2
2
2
2
2
2
2
2
2
2
2
(1)
2
(1)
P)
2
1 Testing required.
1 Must test.
2 Do not test unless "reason to believe" it is discharged.
3Subparts are defined in 40 CFR Part 430.
[48 FR 14153, Apr. 1, 1983, as amended at 49 FR 38050,
Sept. 26, 1984; 50 FR 6940, Feb. 19, 1985]
APPENDIX E TO PART 122—RAINFALL ZONES OF THE UNITED STATES
EC01MR92.016
60
-------
Pt. 122, App. G
Not Shown: Alaska (Zone 7); Hawaii (Zone 7); Northern Mariana Islands (Zone 7); Guam (Zone 7);
American Samoa (Zone 7); Trust Territory of the Pacific Islands (Zone 7); Puerto Rico (Zone 3) Virgin
Islands (Zone 3).
Source: Methodology for Analysis of Detention Basins for Control of Urban Runoff Quality, prepared
for U.S. Environmental Protection Agency, Office of Water, Nonpoint Source Division, Washington, DC,
1986.
[55 FR 48073, Nov. 16, 1990]
APPENDIX F TO PART 122—INCORPORATED
PLACES WITH POPULATIONS GREATER THAN
250,000 ACCORDING TO LATEST DECENMAL
CENSUS BY BUREAU OF CENSUS
State
Washington
Incorporated place
Virginia Beach.
Seattle.
State
Alabama
Arizona
California
Colorado
District of Columbia
Florida
Georgia
Illinois
Indiana
Kansas
Kentucky
Louisiana
Maryland
Massach usetts
Michigan
Minnesota
Missouri
Nebraska
New Jersey
New Mexico
New York
North Carolina
Ohio
Oklahoma
Oregon
Pennsylvania
Tennessee
Texas
Virainia
Incorporated place
Birmingham.
Phoenix.
Tucson.
Long Beach.
Los Angeles.
Oakland.
Sacramento.
San Diego.
San Francisco.
San Jose.
Denver.
Jacksonville.
Miami.
Tampa.
Atlanta.
Chicago.
Indianapolis.
Wichita.
Louisville.
New Orleans.
Baltimore.
Boston.
Detroit.
Minneapolis
St. Paul.
Kansas City.
St. Louis.
Omaha.
Newark.
Albuquerque.
Buffalo.
Bronx Borough.
Brooklyn Borough.
Manhattan Borough.
Queens Borough.
Staten Island Borough.
Charlotte.
Cincinnati.
Cleveland.
Columbus.
Toledo.
Oklahoma City.
Tulsa.
Portland.
Philadelphia.
Pittsburgh.
Memphis.
Nashville/Davidson.
Austin.
Dallas.
El Paso.
Fort Worth.
Houston.
San Antonio.
Norfolk.
[55 FR 48073, Nov. 16, 1990]
APPENDIX G TO PART 122—PLACES WITH POPU-
LATIONS GREATER THAN 100,000 AND LESS
THAN 250,000 ACCORDING TO LATEST DE-
CENNIAL CENSUS BY BUREAU OF CENSUS
State
Alaska
Arizona
Arkansas
California
Connecticut
Georgia .
Indiana
Incorporated place
Huntsville.
Mobile.
Montgomery.
Anchorage.
Mesa.
Tempe.
Little Rock.
Anaheim.
Bakersfield.
Berkeley.
Concord.
Fremont.
Fresno.
Fullerton.
Garden Grove.
Glendale.
Huntington Beach.
Modesto.
Oxnard.
Pasadena.
Riverside.
San Bernadino.
Santa Ana.
Stockton.
Sunnyvale.
Torrance.
Aurora.
Colorado Springs.
Lakewood.
Pueblo.
Bridgeport.
Hartford.
New Haven.
Stamford.
Waterbury.
Fort Lauderdale.
Hialeah.
Hollywood.
Orlando.
St. Petersburg.
Columbus.
Macon.
Savannah.
Boise City.
Peoria.
Rockford.
Evansville.
61
-------
Pt. 122, App. H
State
Iowa
Kansas
Kentucky
Michigan
Mississippi
NewYork
Ohio
Pennsylvania
South Carolina
Utah
Wisconsin
Incorporated place
Fort Wayne.
Gary.
South Bend.
Cedar Rapids.
Davenport.
Des Moines.
Kansas City.
Topeka.
Lexington-Fayette.
Shreveport.
Worcester.
Ann Arbor.
Flint.
Grand Rapids.
Lansing.
Livonia.
Sterling Heights.
Warren.
Jackson.
Springfield.
Reno.
Elizabeth
Jersey City.
Paterson.
Albany.
Rochester.
Syracuse.
Yonkers.
Greensboro.
Raleigh.
Wnston-Salem.
Akron.
Dayton.
Youngstown.
Allentown.
Erie.
Columbia.
Knoxville.
Arlington.
Beaumont.
Corpus Christi.
Garland.
Irving.
Lubbock.
Pasadena.
Waco.
Salt Lake City.
Chesapeake.
Hampton.
Newport News.
Portsmouth.
Richmond.
Roanoke.
Tacoma.
Madison.
APPENDIX H TO PART 122—COUNTIES WITH UN-
INCORPORATED URBANIZED AREAS WITH A
POPULATION OF 250,000 OR MORE ACCORD-
ING TO THE LATEST DECENMAL CENSUS BY
THE BUREAU OF CENSUS
State
California
Delaware
Florida
Georgia
Utah
Virginia
Washington
County
Los Angeles
Newcastle
Dade
DeKalb
Baltimore
Montgomery
Prince George's
Salt Lake
Fairfax
King
Unincor-
porated ur-
banized pop-
ulation
912,664
449 056
304 758
257,184
781,949
386,379
688 1 78
271 458
601,308
447,993
450,188
409 601
304 632
527,178
336,800
[55 FR 48074, Nov. 16, 1990]
APPENDTX I TO PART 122—COUNTIES WITH UNIN-
CORPORATED URBANIZED AREAS GREATER
THAN 100,000, Bur LESS THAN 250,000 AC-
CORDING TO THE LATEST DECENMAL CENSUS
BY THE BUREAU OF CENSUS
[55 FR 48074, Nov. 16, 1990]
State
Alabama
Kentucky
Nevada
Virginia
County
Jefferson
Pi ma
Kern
Orange
San Bernardino
Escambia
Hillsborough
Palm Beach
Polk
Sarasota
Cobb
Jefferson
Clark
Washington
Richland
Arlington
Chesterfield
Pierce
Unincor-
porated ur-
banized pop-
ulation
102,917
111 479
1 87 474
1 58 452
117,231
210,693
115719
148,644
1 59 370
147,892
238,292
245 325
167,089
1 94 389
104,150
110,009
1 00 742
204,121
118529
224,958
1 40 836
1 42 727
201,775
141 100
109,348
1 35 398
124,684
152,599
161 204
108,348
1 03 493
196,113
62
-------
Pt. 122, App. I
[55 FR 48074, Nov. 16, 1990]
63
-------
PART 123—STATE PROGRAM
REQUIREMENTS
Subpart A—General
Sec.
123.1 Purpose and scope.
123.2 Definitions.
123.3 Coordination with other programs.
Subpart B—State Program Submissions
123.21 Elements of a program submission.
123.22 Program description.
123.23 Attorney General's statement.
123.24 Memorandum of Agreement with the Regional
Administrator.
123.25 Requirements for permitting.
123.26 Requirements for compliance evaluation pro-
grams.
123.27 Requirements for enforcement authority.
123.28 Control of disposal of pollutants into wells.
123.29 Prohibition.
123.30 Judicial review of approval or denial of permits.
123.31 Requirements for eligibility of Indian Tribes.
123.32 Request by an Indian Tribe for a determination
of eligibility.
123.33 Procedures for processing an Indian Tribe's ap-
plication.
123.34 Provisions for Tribal criminal enforcement au-
thority.
Subpart C—Transfer of Information and
Permit Review
123.41 Sharing of information.
123.42 Receipt and use of Federal information.
123.43 Transmission of information to EPA.
123.44 EPA review of and objections to State permits.
123.45 Noncompliance and program reporting by the
Director.
123.46 Individual control strategies.
Subpart D—Program Approval, Revision
and Withdrawal
123.61 Approval process.
123.62 Procedures for revision of State programs.
123.63 Criteria for withdrawal of State programs.
123.64 Procedures for withdrawal of State programs.
AUTHORITY: Clean Water Act, 33 U.S.C. 1251 et seq.
SOURCE: 48 FR 14178, Apr. 1, 1983, unless otherwise
noted.
Subpart A—General
§ 123.1 Purpose and scope.
(a) This part specifies the procedures EPA will
follow in approving, revising, and withdrawing
State programs and the requirements State pro-
grams must meet to be approved by the Adminis-
trator under sections 318, 402, and 405 (National
Pollutant Discharge Elimination System—NPDES)
of CWA.
(b) These regulations are promulgated under the
authority of sections 304(i), 101(e), 405, and
518(e) of the CWA, and implement the require-
ments of those sections.
(c) The Administrator shall approve State pro-
grams which conform to the applicable require-
ments of this part. A State NPDES program will
not be approved by the Administrator under sec-
tion 402 of CWA unless it has authority to control
the discharges specified in sections 318 and 405(a)
of CWA. Permit programs under sections 318 and
405(a) will not be approved independent of a sec-
tion 402 program. (Permit programs under section
405(f) of CWA (sludge management programs)
may be approved under 40 CFR part 501 inde-
pendently of a section 402 permit program.)
(d)(l) Upon approval of a State program, the
Administrator shall suspend the issuance of Fed-
eral permits for those activities subject to the ap-
proved State program. After program approval
EPA shall retain jurisdiction over any permits (in-
cluding general permits) which it has issued unless
arrangements have been made with the State in the
Memorandum of Agreement for the State to as-
sume responsibility for these permits. Retention of
jurisdiction shall include the processing of any
permit appeals, modification requests, or variance
requests; the conduct of inspections, and the re-
ceipt and review of self-monitoring reports. If any
permit appeal, modification request or variance re-
quest is not finally resolved when the federally is-
sued permit expires, EPA may, with the consent of
the State, retain jurisdiction until the matter is re-
solved.
(2) The procedures outlined in the preceding
paragraph (d)(l) of this section for suspension of
permitting authority and transfer of existing per-
mits will also apply when EPA approves an Indian
Tribe's application to operate a State program and
a State was the authorized permitting authority
under § 123.23(b) for activities within the scope of
the newly approved program. The authorized State
will retain jurisdiction over its existing permits as
described in paragraph (d)(l) of this section absent
a different arrangement stated in the Memorandum
of Agreement executed between EPA and the
Tribe.
(e) Upon submission of a complete program,
EPA will conduct a public hearing, if interest is
shown, and determine whether to approve or dis-
approve the program taking into consideration the
requirements of this part, the CWA and any com-
ments received.
(f) Any State program approved by the Admin-
istrator shall at all times be conducted in accord-
ance with the requirements of this part.
(g)(l) Except as may be authorized pursuant to
paragraph (g)(2) of this section or excluded by
§ 122.3, the State program must prohibit all point
1
-------
§123.2
source discharges of pollutants, all discharges into
aquaculture projects, and all disposal of sewage
sludge which results in any pollutant from such
sludge entering into any waters of the United
States within the State's jurisdiction except as au-
thorized by a permit in effect under the State pro-
gram or under section 402 of CWA. NPDES au-
thority may be shared by two or more State agen-
cies but each agency must have Statewide jurisdic-
tion over a class of activities or discharges. When
more than one agency is responsible for issuing
permits, each agency must make a submission
meeting the requirements of §123.21 before EPA
will begin formal review.
(2) A State may seek approval of a partial or
phased program in accordance with section 402(n)
of the CWA.
(h) In many cases, States (other than Indian
Tribes) will lack authority to regulate activities on
Indian lands. This lack of authority does not im-
pair that State's ability to obtain full program ap-
proval in accordance with this part, i.e., inability
of a State to regulate activities on Indian lands
does not constitute a partial program. EPA will ad-
minister the program on Indian lands if a State (or
Indian Tribe) does not seek or have authority to
regulate activities on Indian lands.
NOTE: States are advised to contact the United States
Department of the Interior, Bureau of Indian Affairs, con-
cerning authority over Indian lands.
(i) Nothing in this part precludes a State from:
(1) Adopting or enforcing requirements which
are more stringent or more extensive than those
required under this part;
(2) Operating a program with a greater scope of
coverage than that required under this part. If an
approved State program has greater scope of cov-
erage than required by Federal law the additional
coverage is not part of the Federally approved pro-
gram.
NOTE: For example, if a State requires permits for dis-
charges into publicly owned treatment works, these per-
mits are not NPDES permits.
[48 FR 14178, Apr. 1, 1983, as amended at 54 FR 256,
Jan. 4, 1989; 54 FR 18784, May 2, 1989; 58 FR 67981,
Dec. 22, 1993; 59 FR 64343, Dec. 14, 1994]
§123.2 Definitions.
The definitions in part 122 and part 501 apply
to all subparts of this part.
§123.3 Coordination with other pro-
grams.
Issuance of State permits under this part may be
coordinated with issuance of RCRA, UIC,
NPDES, and 404 permits whether they are con-
trolled by the State, EPA, or the Corps of Engi-
neers. See § 124.4.
Subpart B—State Program
Submissions
§123.21 Elements of a program sub-
mission.
(a) Any State that seeks to administer a program
under this part shall submit to the Administrator at
least three copies of a program submission. The
submission shall contain the following:
(1) A letter from the Governor of the State (or
in the case of an Indian Tribe in accordance with
§ 123.33(b), the Tribal authority exercising powers
substantially similar to those of a State Governor)
requesting program approval;
(2) A complete program description, as required
by § 123.22, describing how the State intends to
carry out its responsibilities under this part;
(3) An Attorney General's statement as required
by § 123.23;
(4) A Memorandum of Agreement with the Re-
gional Administrator as required by § 123.24;
(5) Copies of all applicable State statutes and
regulations, including those governing State ad-
ministrative procedures;
(b)(l) Within 30 days of receipt by EPA of a
State program submission, EPA will notify the
State whether its submission is complete. If EPA
finds that a State's submission is complete, the
statutory review period (i.e., the period of time al-
lotted for formal EPA review of a proposed State
program under CWA) shall be deemed to have
begun on the date of receipt of the State's submis-
sion. If EPA finds that a State's submission is in-
complete, the statutory review period shall not
begin until all the necessary information is re-
ceived by EPA.
(2) In the case of an Indian Tribe eligible under
§ 123.33(b), EPA shall take into consideration the
contents of the Tribe's request submitted under
§ 123.32, in determining if the program submission
required by § 123.21(a) is complete.
(c) If the State's submission is materially
changed during the statutory review period, the
statutory review period shall begin again upon re-
ceipt of the revised submission.
(d) The State and EPA may extend the statutory
review period by agreement.
[48 FR 14178, Apr. 1, 1983; 50 FR 6941, Feb. 19, 1985,
as amended at 58 FR 67981, Dec. 22, 1993; 59 FR
64343, Dec. 14, 1994]
§123.22 Program description.
Any State that seeks to administer a program
under this part shall submit a description of the
program it proposes to administer in lieu of the
Federal program under State law or under an inter-
-------
§123.23
state compact. The program description shall in-
clude:
(a) A description in narrative form of the scope,
structure, coverage and processes of the State pro-
gram.
(b) A description (including organization charts)
of the organization and structure of the State agen-
cy or agencies which will have responsibility for
administering the program, including the informa-
tion listed below. If more than one agency is re-
sponsible for administration of a program, each
agency must have statewide jurisdiction over a
class of activities. The responsibilities of each
agency must be delineated, their procedures for
coordination set forth, and an agency may be des-
ignated as a "lead agency" to facilitate commu-
nications between EPA and the State agencies
having program responsibility. If the State pro-
poses to administer a program of greater scope of
coverage than is required by Federal law, the in-
formation provided under this paragraph shall indi-
cate the resources dedicated to administering the
Federally required portion of the program.
(1) A description of the State agency staff who
will carry out the State program, including the
number, occupations, and general duties of the
employees. The State need not submit complete
job descriptions for every employee carrying out
the State program.
(2) An itemization of the estimated costs of es-
tablishing and administering the program for the
first two years after approval, including cost of the
personnel listed in paragraph (b)(l) of this section,
cost of administrative support, and cost of tech-
nical support.
(3) An itemization of the sources and amounts
of funding, including an estimate of Federal grant
money, available to the State Director for the first
two years after approval to meet the costs listed
in paragraph (b)(2) of this section, identifying any
restrictions or limitations upon this funding.
(c) A description of applicable State procedures,
including permitting procedures and any State ad-
ministrative or judicial review procedures;
(d) Copies of the permit form(s), application
form(s), and reporting form(s) the State intends to
employ in its program. Forms used by States need
not be identical to the forms used by EPA but
should require the same basic information, except
that State NPDES programs are required to use
standard Discharge Monitoring Reports (DMR).
The State need not provide copies of uniform na-
tional forms it intends to use but should note its
intention to use such forms.
NOTE: States are encouraged to use uniform national
forms established by the Administrator. If uniform na-
tional forms are used, they may be modified to include
the State Agency's name, address, logo, and other similar
information, as appropriate, in place of EPA's.
(e) A complete description of the State's com-
pliance tracking and enforcement program.
(f) A State seeking approval of a sludge man-
agement program under section 405(f) of the
CWA as part of its NPDES program, in addition
to the above requirements of this section, shall in-
clude the inventory as required in 40 CFR
501.12(f).
(g) In the case of Indian Tribes eligible under
§ 123.33(b), if a State has been authorized by EPA
to issue permits on the Federal Indian reservation
in accordance with § 123.23(b), a description of
how responsibility for pending permit applications,
existing permits, and supporting files will be trans-
ferred from the State to the eligible Indian Tribe.
To the maximum extent practicable, this should in-
clude a Memorandum of Agreement negotiated be-
tween the State and the Indian Tribe addressing
the arrangements for such transfer.
[48 FR 14178, Apr. 1, 1983; 50 FR 6941, Feb. 19, 1985,
as amended at 54 FR 18784, May 2, 1989; 58 FR 67981,
Dec. 22, 1993; 59 FR 64343, Dec. 14, 1994]
§ 123.23 Attorney General's statement.
(a) Any State that seeks to administer a program
under this part shall submit a statement from the
State Attorney General (or the attorney for those
State or interstate agencies which have independ-
ent legal counsel) that the laws of the State, or an
interstate compact, provide adequate authority to
carry out the program described under § 123.22
and to meet the requirements of this part. This
statement shall include citations to the specific
statutes, administrative regulations, and, where ap-
propriate, judicial decisions which demonstrate
adequate authority. State statutes and regulations
cited by the State Attorney General or independent
legal counsel shall be in the form of lawfully
adopted State statutes and regulations at the time
the statement is signed and shall be fully effective
by the time the program is approved. To qualify
as "independent legal counsel" the attorney sign-
ing the statement required by this section must
have full authority to independently represent the
State agency in court on all matters pertaining to
the State program.
NOTE: EPA will supply States with an Attorney Gen-
eral's statement format on request.
(b) If a State (which is not an Indian Tribe)
seeks authority over activities on Indian lands, the
statement shall contain an appropriate analysis of
the State's authority.
(c) The Attorney General's statement shall cer-
tify that the State has adequate legal authority to
issue and enforce general permits if the State
-------
§123.24
seeks to implement the general permit program
under § 122.28.
[48 FR 14178, Apr. 1, 1983, as amended at 58 FR 67981,
Dec. 22, 1993]
§123.24 Memorandum of Agreement
with the Regional Administrator.
(a) Any State that seeks to administer a program
under this part shall submit a Memorandum of
Agreement. The Memorandum of Agreement shall
be executed by the State Director and the Regional
Administrator and shall become effective when ap-
proved by the Administrator. In addition to meet-
ing the requirements of paragraph (b) of this sec-
tion, the Memorandum of Agreement may include
other terms, conditions, or agreements consistent
with this part and relevant to the administration
and enforcement of the State's regulatory program.
The Administrator shall not approve any Memo-
randum of Agreement which contains provisions
which restrict EPA's statutory oversight respon-
sibility.
(b) The Memorandum of Agreement shall in-
clude the following:
(l)(i) Provisions for the prompt transfer from
EPA to the State of pending permit applications
and any other information relevant to program op-
eration not already in the possession of the State
Director (e.g., support files for permit issuance,
compliance reports, etc.). If existing permits are
transferred from EPA to the State for administra-
tion, the Memorandum of Agreement shall contain
provisions specifying a procedure for transferring
the administration of these permits. If a State lacks
the authority to directly administer permits issued
by the Federal government, a procedure may be
established to transfer responsibility for these per-
mits.
NOTE: For example, EPA and the State and the permit-
tee could agree that the State would issue a permit(s)
identical to the outstanding Federal permit which would
simultaneously be terminated.
(ii) Where a State has been authorized by EPA
to issue permits in accordance with § 123.23(b) on
the Federal Indian reservation of the Indian Tribe
seeking program approval, provisions describing
how the transfer of pending permit applications,
permits, and any other information relevant to the
program operation not already in the possession of
the Indian Tribe (support files for permit issuance,
compliance reports, etc.) will be accomplished.
(2) Provisions specifying classes and categories
of permit applications, draft permits, and proposed
permits that the State will send to the Regional
Administrator for review, comment and, where ap-
plicable, objection.
(3) Provisions specifying the frequency and con-
tent of reports, documents and other information
which the State is required to submit to EPA. The
State shall allow EPA to routinely review State
records, reports, and files relevant to the adminis-
tration and enforcement of the approved program.
State reports may be combined with grant reports
where appropriate. These procedures shall imple-
ment the requirements of § 123.43.
(4) Provisions on the State's compliance mon-
itoring and enforcement program, including:
(i) Provisions for coordination of compliance
monitoring activities by the State and by EPA.
These may specify the basis on which the Re-
gional Administrator will select facilities or activi-
ties within the State for EPA inspection. The Re-
gional Administrator will normally notify the State
at least 7 days before any such inspection; and
(ii) Procedures to assure coordination of en-
forcement activities.
(5) When appropriate, provisions for joint proc-
essing of permits by the State and EPA for facili-
ties or activities which require permits from both
EPA and the State under different programs. (See
§124.4.)
NOTE: To promote efficiency and to avoid duplication
and inconsistency, States are encouraged to enter into
joint processing agreements with EPA for permit issu-
ance. Likewise, States are encouraged (but not required)
to consider steps to coordinate or consolidate their own
permit programs and activities.
(6) Provisions for modification of the Memoran-
dum of Agreement in accordance with this part.
(c) The Memorandum of Agreement, the annual
program grant and the State/EPA Agreement
should be consistent. If the State/EPA Agreement
indicates that a change is needed in the Memoran-
dum of Agreement, the Memorandum of Agree-
ment may be amended through the procedures set
forth in this part. The State/EPA Agreement may
not override the Memorandum of Agreement.
NOTE: Detailed program priorities and specific arrange-
ments for EPA support of the State program will change
and are therefore more appropriately negotiated in the
context of annual agreements rather than in the MOA.
However, it may still be appropriate to specify in the
MOA the basis for such detailed agreements, e.g., a pro-
vision in the MOA specifying that EPA will select facili-
ties in the State for inspection annually as part of the
State/EPA agreement.
(d) The Memorandum of Agreement shall also
specify the extent to which EPA will waive its
right to review, object to, or comment upon State-
issued permits under section 402(d)(3), (e) or (f)
of CWA. While the Regional Administrator and
the State may agree to waive EPA review of cer-
tain "classes or categories" of permits, no waiver
of review may be granted for the following classes
or categories:
(1) Discharges into the territorial sea;
-------
§123.25
(2) Discharges which may affect the waters of
a State other than the one in which the discharge
originates;
(3) Discharges proposed to be regulated by gen-
eral permits (see §122.28);
(4) Discharges from publicly owned treatment
works with a daily average discharge exceeding 1
million gallons per day;
(5) Discharges of uncontaminated cooling water
with a daily average discharge exceeding 500 mil-
lion gallons per day;
(6) Discharges from any major discharger or
from any discharger within any of the 21 indus-
trial categories listed in appendix A to part 122;
(7) Discharges from other sources with a daily
average discharge exceeding 0.5 (one-half) million
gallons per day, except that EPA review of per-
mits for discharges of non-process wastewater may
be waived regardless of flow.
(8) "Class I sludge management facilities" as
defined in 40 CFR 501.2.
(e) Whenever a waiver is granted under para-
graph (d) of this section, the Memorandum of
Agreement shall contain:
(1) A statement that the Regional Administrator
retains the right to terminate the waiver as to fu-
ture permit actions, in whole or in part, at any
time by sending the State Director written notice
of termination; and
(2) A statement that the State shall supply EPA
with copies of final permits.
[48 FR 14178, Apr. 1, 1983; 50 FR 6941, Feb. 19, 1985,
as amended at 54 FR 18784, May 2, 1989; 58 FR 67981,
Dec. 22, 1993]
§ 123.25 Requirements for permitting.
(a) All State Programs under this part must have
legal authority to implement each of the following
provisions and must be administered in conform-
ance with each, except that a State which chooses
not to administer a sludge management program
pursuant to section 405(f) of the CWA as part of
its NPDES program is not required to have legal
authority to implement the portions of the follow-
ing provisions which were promulgated after the
enactment of the Water Quality Act of 1987 (Pub.
L. 100^1) and which govern sewage sludge use
and disposal. In all cases, States are not precluded
from omitting or modifying any provisions to im-
pose more stringent requirements:
(1) § 122.4—(Prohibitions):
(2) § 122.5(a) and (b)—(Effect of permit);
(3)§122.7(b) and (c)—(Confidential informa-
tion);
(4) §122.21 (a)-(b), (c)(2), (e)-(k), and (m)-
(p)—(Application for a permit);
(5) § 122.22—(Signatories);
(6) § 122.23—(Concentrated animal feeding op-
erations);
(7) § 122.24—(Concentrated aquatic animal pro-
duction facilities);
(8) § 122.25—(Aquaculture projects);
(9) § 122.26—(Storm water discharges);
(10) § 122.27—(Silviculture);
(11) §122.28—(General permits), Provided that
States which do not seek to implement the general
permit program under § 122.28 need not do so.
(12) Section 122.41—(Applicable permit condi-
tions)(Indian Tribes can satisfy enforcement au-
thority requirements under § 123.34).
(13) §122.42—(Conditions applicable to speci-
fied categories of permits);
(14) § 122.43—(Establishing permit conditions);
(15) §122.44—(Establishing NPDES permit
conditions);
(16) § 122.45—(Calculating permit conditions);
(17) § 122.46—(Duration);
(18) § 122.47(a)—(Schedules of compliance);
(19) § 122.48—(Monitoring requirements);
(20) § 122.50—(Disposal into wells);
(21) § 122.61—(Permit transfer);
(22) § 122.62—(Permit modification);
(23) § 122.64—(Permit termination);
(24) § 124.3(a)—(Application for a permit);
(25) §124.5 (a), (c), (d), and (f)—(Modification
of permits);
(26) § 124.6 (a), (c), (d), and (e)—(Draft per-
mit);
(27) § 124.8—(Fact sheets);
(28) §124.10 (a)(l)(ii), (a)(l)(iii), (a)(l)(v), (b),
(c), (d), and (e)—(Public notice);
(29) §124.11—(Public comments and requests
for hearings);
(30) § 124.12(a)—(Public hearings); and
(31) §124.17 (a) and (c)—(Response to com-
ments);
(32) § 124.56—(Fact sheets);
(33) § 124.57(a)—(Public notice);
(34) §124.59—(Comments from government
agencies);
(35) § 124.62—(Decision on variances);
(36)Subparts A, B, C, D, H, I, J, K and L of
part 125;
(37)40 CFR parts 129, 133, subchapter N and
40 CFR part 503; and
(38) For a Great Lakes State or Tribe (as de-
fined in 40 CFR 132.2), 40 CFR part 132 (NPDES
permitting implementation procedures only).
NOTE: States need not implement provisions identical
to the above listed provisions. Implemented provisions
must, however, establish requirements at least as stringent
as the corresponding listed provisions. While States may
impose more stringent requirements, they may not make
one requirement more lenient as a tradeoff for making an-
other requirement more stringent; for example, by requir-
ing that public hearings be held prior to issuing any per-
mit while reducing the amount of advance notice of such
a hearing.
-------
§123.26
State programs may, if they have adequate legal author-
ity, implement any of the provisions of parts 122 and 124.
See, for example, § 122.5(d) (continuation of permits) and
§ 124.4 (consolidation of permit processing).
For example, a State may impose more stringent re-
quirements in an NPDES program by omitting the upset
provision of § 122.41 or by requiring more prompt notice
of an upset.
(b) State NPDES programs shall have an ap-
proved continuing planning process under 40 CFR
35.1500 and shall assure that the approved plan-
ning process is at all times consistent with CWA.
(c) State NPDES programs shall ensure that any
board or body which approves all or portions of
permits shall not include as a member any person
who receives, or has during the previous 2 years
received, a significant portion of income directly
or indirectly from permit holders or applicants for
a permit.
(1) For the purposes of this paragraph:
(i) Board or body includes any individual, in-
cluding the Director, who has or shares authority
to approve all or portions of permits either in the
first instance, as modified or reissued, or on ap-
peal.
(ii) Significant portion of income means 10 per-
cent or more of gross personal income for a cal-
endar year, except that it means 50 percent or
more of gross personal income for a calendar year
if the recipient is over 60 years of age and is re-
ceiving that portion under retirement, pension, or
similar arrangement.
(iii) Permit holders or applicants for a permit
does not include any department or agency of a
State government, such as a Department of Parks
or a Department of Fish and Wildlife.
(iv) Income includes retirement benefits, con-
sultant fees, and stock dividends.
(2) For the purposes of paragraph (c) of this
section, income is not received "directly or indi-
rectly from permit holders or applicants for a per-
mit" when it is derived from mutual fund pay-
ments, or from other diversified investments for
which the recipient does not know the identity of
the primary sources of income.
[48 FR 14178, Apr. 1, 1983; 50 FR 6941, Feb. 19, 1985;
50 FR 7912, Feb. 27, 1985, as amended at 54 FR 18784,
May 2, 1989; 55 FR 48075, Nov. 16, 1990; 58 FR 9414,
Feb. 19, 1993; 58 FR 67981, Dec. 22, 1993; 60 FR
15386, Mar. 23, 1995]
§123.26 Requirements for compliance
evaluation programs.
(a) State programs shall have procedures for re-
ceipt, evaluation, retention and investigation for
possible enforcement of all notices and reports re-
quired of permittees and other regulated persons
(and for investigation for possible enforcement of
failure to submit these notices and reports).
(b) State programs shall have inspection and
surveillance procedures to determine, independent
of information supplied by regulated persons, com-
pliance or noncompliance with applicable program
requirements. The State shall maintain:
(1) A program which is capable of making com-
prehensive surveys of all facilities and activities
subject to the State Director's authority to identify
persons subject to regulation who have failed to
comply with permit application or other program
requirements. Any compilation, index or inventory
of such facilities and activities shall be made
available to the Regional Administrator upon re-
quest;
(2) A program for periodic inspections of the
facilities and activities subject to regulation. These
inspections shall be conducted in a manner de-
signed to:
(i) Determine compliance or noncompliance
with issued permit conditions and other program
requirements;
(ii) Verify the accuracy of information submit-
ted by permittees and other regulated persons in
reporting forms and other forms supplying mon-
itoring data; and
(iii) Verify the adequacy of sampling, monitor-
ing, and other methods used by permittees and
other regulated persons to develop that informa-
tion;
(3) A program for investigating information ob-
tained regarding violations of applicable program
and permit requirements; and
(4) Procedures for receiving and ensuring proper
consideration of information submitted by the Pub-
lic about violations. Public effort in reporting vio-
lations shall be encouraged, and the State Director
shall make available information on reporting pro-
cedures.
(c) The State Director and State officers en-
gaged in compliance evaluation shall have author-
ity to enter any site or premises subject to regula-
tion or in which records relevant to program oper-
ation are kept in order to copy any records, in-
spect, monitor or otherwise investigate compliance
with the State program including compliance with
permit conditions and other program requirements.
States whose law requires a search warrant before
entry conform with this requirement.
(d) Investigatory inspections shall be conducted,
samples shall be taken and other information shall
be gathered in a manner (e.g., using proper "chain
of custody" procedures) that will produce evi-
dence admissible in an enforcement proceeding or
in court.
(e) State NPDES compliance evaluation pro-
grams shall have procedures and ability for:
(1) Maintaining a comprehensive inventory of
all sources covered by NPDES permits and a
-------
§123.27
schedule of reports required to be submitted by
permittees to the State agency;
(2) Initial screening (i.e., pre-enforcement eval-
uation) of all permit or grant-related compliance
information to identify violations and to establish
priorities for further substantive technical evalua-
tion;
(3) When warranted, conducting a substantive
technical evaluation following the initial screening
of all permit or grant-related compliance informa-
tion to determine the appropriate agency response;
(4) Maintaining a management information sys-
tem which supports the compliance evaluation ac-
tivities of this part; and
(5) Inspecting the facilities of all major dis-
chargers and all Class I sludge management facili-
ties (as defined in 40 CFR 501.2) where applicable
at least annually.
[48 FR 14178, Apr. 1, 1983, as amended at 54 FR 18785,
May 2, 1989]
§123.27 Requirements for enforcement
authority.
(a) Any State agency administering a program
shall have available the following remedies for
violations of State program requirements:
(1) To restrain immediately and effectively any
person by order or by suit in State court from en-
gaging in any unauthorized activity which is en-
dangering or causing damage to public health or
the environment;
NOTE: This paragraph (a)(l) requires that States have
a mechanism (e.g., an administrative cease and desist
order or the ability to seek a temporary restraining order)
to stop any unauthorized activity endangering public
health or the environment.
(2) To sue in courts of competent jurisdiction to
enjoin any threatened or continuing violation of
any program requirement, including permit condi-
tions, without the necessity of a prior revocation
of the permit;
(3) To assess or sue to recover in court civil
penalties and to seek criminal remedies, including
fines, as follows:
(i) Civil penalties shall be recoverable for the
violation of any NPDES permit condition; any
NPDES filing requirement; any duty to allow or
carry out inspection, entry or monitoring activities;
or, any regulation or orders issued by the State Di-
rector. These penalties shall be assessable in at
least the amount of $5,000 a day for each viola-
tion.
(ii) Criminal fines shall be recoverable against
any person who willfully or negligently violates
any applicable standards or limitations; any
NPDES permit condition; or any NPDES filing re-
quirement. These fines shall be assessable in at
least the amount of $10,000 a day for each viola-
tion.
NOTE: States which provide the criminal remedies
based on "criminal negligence," "gross negligence" or
strict liability satisfy the requirement of paragraph
(a)(3)(ii) of this section.
(iii) Criminal fines shall be recoverable against
any person who knowingly makes any false state-
ment, representation or certification in any NPDES
form, in any notice or report required by an
NPDES permit, or who knowingly renders inac-
curate any monitoring device or method required
to be maintained by the Director. These fines shall
be recoverable in at least the amount of $5,000 for
each instance of violation.
NOTE: In many States the State Director will be rep-
resented in State courts by the State Attorney General or
other appropriate legal officer. Although the State Direc-
tor need not appear in court actions he or she should have
power to request that any of the above actions be brought.
(b)(l) The maximum civil penalty or criminal
fine (as provided in paragraph (a)(3) of this sec-
tion) shall be assessable for each instance of viola-
tion and, if the violation is continuous, shall be as-
sessable up to the maximum amount for each day
of violation.
(2) The burden of proof and degree of knowl-
edge or intent required under State law for estab-
lishing violations under paragraph (a)(3) of this
section, shall be no greater than the burden of
proof or degree of knowledge or intent EPA must
provide when it brings an action under the appro-
priate Act;
NOTE: For example, this requirement is not met if State
law includes mental state as an element of proof for civil
violations.
(c) A civil penalty assessed, sought, or agreed
upon by the State Director under paragraph (a)(3)
of this section shall be appropriate to the violation.
NOTE: To the extent that State judgments or settlements
provide penalties in amounts which EPA believes to be
substantially inadequate in comparison to the amounts
which EPA would require under similar facts, EPA, when
authorized by the applicable statute, may commence sepa-
rate actions for penalties.
Procedures for assessment by the State of the cost of
investigations, inspections, or monitoring surveys which
lead to the establishment of violations;
In addition to the requirements of this paragraph, the
State may have other enforcement remedies. The follow-
ing enforcement options, while not mandatory, are highly
recommended:
Procedures which enable the State to assess or to sue
any persons responsible for unauthorized activities for any
expenses incurred by the State in removing, correcting, or
terminating any adverse effects upon human health and
the environment resulting from the unauthorized activity,
whether or not accidental;
Procedures which enable the State to sue for compensa-
tion for any loss or destruction of wildlife, fish or aquatic
life, or their habitat, and for any other damages caused by
unauthorized activity, either to the State or to any resi-
-------
§123.28
dents of the State who are directly aggrieved by the unau-
thorized activity, or both; and
Procedures for the administrative assessment of pen-
alties by the Director.
(d) Any State administering a program shall
provide for public participation in the State en-
forcement process by providing either:
(1) Authority which allows intervention as of
right in any civil or administrative action to obtain
remedies specified in paragraphs (a)(l), (2) or (3)
of this section by any citizen having an interest
which is or may be adversely affected; or
(2) Assurance that the State agency or enforce-
ment authority will:
(i) Investigate and provide written responses to
all citizen complaints submitted pursuant to the
procedures specified in § 123.26(b)(4);
(ii) Not oppose intervention by any citizen when
permissive intervention may be authorized by stat-
ute, rule, or regulation; and
(iii) Publish notice of and provide at least 30
days for public comment on any proposed settle-
ment of a State enforcement action.
(e) Indian Tribes that cannot satisfy the criminal
enforcement authority requirements of this section
may still receive program approval if they meet
the requirement for enforcement authority estab-
lished under § 123.34.
(Clean Water Act (33 U.S.C. 1251 et seq.), Safe Drinking
Water Act (42 U.S.C. 300f et seq.), Clean Air Act (42
U.S.C. 7401 et seq.\ Resource Conservation and Recov-
ery Act (42 U.S.C. 6901 et seq.))
[48 FR 14178, Apr. 1, 1983, as amended at 48 FR 39620,
Sept. 1, 1983; 50 FR 6941, Feb. 19, 1985; 54 FR 258,
Jan. 4, 1989; 58 FR 67981, Dec. 22, 1993]
§123.28 Control of disposal of pollut-
ants into wells.
State law must provide authority to issue per-
mits to control the disposal of pollutants into
wells. Such authority shall enable the State to pro-
tect the public health and welfare and to prevent
the pollution of ground and surface waters by pro-
hibiting well discharges or by issuing permits for
such discharges with appropriate permit terms and
conditions. A program approved under section
1422 of SDWA satisfies the requirements of this
section.
NOTE: States which are authorized to administer the
NPDES permit program under section 402 of CWA are
encouraged to rely on existing statutory authority, to the
extent possible, in developing a State UIC program under
section 1422 of SDWA. Section 402(b)(l)(D) of CWA re-
quires that NPDES States have the authority "to issue
permits which * * * control the disposal of pollutants
into wells." In many instances, therefore, NPDES States
will have existing statutory authority to regulate well dis-
posal which satisfies the requirements of the UIC pro-
gram. Note, however, that CWA excludes certain types of
well injections from the definition of "pollutant." If the
State's statutory authority contains a similar exclusion it
may need to be modified to qualify for UIC program ap-
proval.
§123.29 Prohibition.
State permit programs shall provide that no per-
mit shall be issued when the Regional Adminis-
trator has objected in writing under § 123.44.
§123.30 Judicial review of approval or
denial of permits.
All States that administer or seek to administer
a program under this part shall provide an oppor-
tunity for judicial review in State Court of the
final approval or denial of permits by the State
that is sufficient to provide for, encourage, and as-
sist public participation in the permitting process.
A State will meet this standard if State law allows
an opportunity for judicial review that is the same
as that available to obtain judicial review in fed-
eral court of a federally-issued NPDES permit (see
§ 509 of the Clean Water Act). A State will not
meet this standard if it narrowly restricts the class
of persons who may challenge the approval or de-
nial of permits (for example, if only the permittee
can obtain judicial review, if persons must dem-
onstrate injury to a pecuniary interest in order to
obtain judicial review, or if persons must have a
property interest in close proximity to a discharge
or surface waters in order to obtain judicial re-
view.) This requirement does not apply to Indian
Tribes.
[61 FR 20980, May 8, 1996]
§123.31 Requirements for eligibility of
Indian Tribes.
(a) Consistent with section 518(e) of the CWA,
33 U.S.C. 1377(e), the Regional Administrator
will treat an Indian Tribe as eligible to apply for
NPDES program authority if it meets the follow-
ing criteria:
(1) The Indian Tribe is recognized by the Sec-
retary of the Interior.
(2) The Indian Tribe has a governing body car-
rying out substantial governmental duties and
powers.
(3) The functions to be exercised by the Indian
Tribe pertain to the management and protection of
water resources which are held by an Indian Tribe,
held by the United States in trust for the Indians,
held by a member of an Indian Tribe if such prop-
erty interest is subject to a trust restriction on
alienation, or otherwise within the borders of an
Indian reservation.
(4) The Indian Tribe is reasonably expected to
be capable, in the Regional Administrator's judg-
ment, of carrying out the functions to be exer-
cised, in a manner consistent with the terms and
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§123.33
purposes of the Act and applicable regulations, of
an effective NPDES permit program.
(b) An Indian Tribe which the Regional Admin-
istrator determines meets the criteria described in
paragraph (a) of this section must also satisfy the
State program requirements described in this part
for assumption of the State program.
[58 FR 67981, Dec.
64343, Dec. 14, 1994]
1993, as amended at 59 FR
§123.32 Request by an Indian Tribe
for a determination of eligibility.
An Indian Tribe may apply to the Regional Ad-
ministrator for a determination that it qualifies
pursuant to section 518 of the Act for purposes of
seeking NPDES permit program approval. The ap-
plication shall be concise and describe how the In-
dian Tribe will meet each of the requirements of
§123.31. The application shall include the follow-
ing information:
(a) A statement that the Tribe is recognized by
the Secretary of the Interior;
(b) A descriptive statement demonstrating that
the Tribal governing body is currently carrying out
substantial governmental duties and powers over a
defined area. This statement should:
(1) Describe the form of the Tribal government;
(2) Describe the types of governmental func-
tions currently performed by the Tribal governing
body, such as, but not limited to, the exercise of
police powers affecting (or relating to) the health,
safety, and welfare of the affected population; tax-
ation; and the exercise of the power of eminent
domain; and
(3) Identify the source of the Tribal govern-
ment's authority to carry out the governmental
functions currently being performed.
(c) A map or legal description of the area over
which the Indian Tribe asserts authority under sec-
tion 518(e)(2) of the Act; a statement by the Trib-
al Attorney General (or equivalent official author-
ized to represent the Tribe in all legal matters in
court pertaining to the program for which it seeks
approval) which describes the basis for the Tribe's
assertion (including the nature or subject matter of
the asserted regulatory authority); copies of those
documents such as Tribal constitutions, by-laws,
charters, executive orders, codes, ordinances, and/
or resolutions which support the Tribe believes are
relevant to its assertion under section 518(e)(2) of
the Act; and a description of the location of the
surface waters for which the Tribe proposes to es-
tablish an NPDES permit program.
(d) A narrative statement describing the capabil-
ity of the Indian Tribe to administer an effective,
environmentally sound NPDES permit program.
The statement should include:
(1) A description of the Indian Tribe's previous
management experience which may include the
administration of programs and service authorized
by the Indian Self-Determination and Education
Assistance Act (25 U.S.C. 450 et seq.), the Indian
Mineral Development Act (25 U.S.C. 2101 et
seq.), or the Indian Sanitation Facility Construc-
tion Activity Act (42 U.S.C. 2004a);
(2) A list of existing environmental or public
health programs administered by the Tribal gov-
erning body, and a copy of related Tribal laws,
regulations, and policies;
(3) A description of the entity (or entities)
which exercise the executive, legislative, and judi-
cial functions of the Tribal government;
(4) A description of the existing, or proposed,
agency of the Indian Tribe which will assume pri-
mary responsibility for establishing and admin-
istering an NPDES permit program (including a
description of the relationship between the existing
or proposed agency and its regulated entities);
(5) A description of the technical and adminis-
trative abilities of the staff to administer and man-
age an effective, environmentally sound NPDES
permit program or a plan which proposes how the
Tribe will acquire additional administrative and
technical expertise. The plan must address how the
Tribe will obtain the funds to acquire the adminis-
trative and technical expertise.
(e) The Regional Administrator may, at his or
her discretion, request further documentation nec-
essary to support a Tribe's eligibility.
(f) If the Administrator or his or her delegatee
has previously determined that a Tribe has met the
prerequisites that make it eligible to assume a role
similar to that of a state as provided by statute
under the Safe Drinking Water Act, the Clean
Water Act, or the Clean Air Act, then that Tribe
need provide only that information unique to the
NPDES program which is requested by the Re-
gional Administrator.
[58 FR 67982, Dec. 22, 1993, as amended at 59 FR
64343, Dec. 14, 1994]
§123.33 Procedures for processing an
Indian Tribe's application.
(a) The Regional Administrator shall process an
application of an Indian Tribe submitted pursuant
to § 123.32 in a timely manner. He shall promptly
notify the Indian Tribe of receipt of the applica-
tion.
(b) The Regional Administrator shall follow the
procedures described in 40 CFR part 123, subpart
D in processing a Tribe's request to assume the
NPDES program.
[58 FR 67982, Dec. 22, 1993, as amended at 59 FR
64343, Dec. 14, 1994]
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§123.34
§123.34 Provisions for Tribal criminal
enforcement authority.
To the extent that an Indian Tribe is precluded
from asserting criminal enforcement authority as
required under § 123.27, the Federal Government
will exercise primary criminal enforcement respon-
sibility. The Tribe, with the EPA Region, shall de-
velop a procedure by which the Tribal agency will
refer potential criminal violations to the Regional
Administrator, as agreed to by the parties, in an
appropriate and timely manner. This procedure
shall encompass all circumstances in which the
Tribe is incapable of exercising the enforcement
requirements of § 123.27. This agreement shall be
incorporated into a joint or separate Memorandum
of Agreement with the EPA Region, as appro-
priate.
[58 FR 67983, Dec. 22, 1993]
Sub pa it C—Transfer of Information
and Permit Review
§ 123.41 Sharing of information.
(a) Any information obtained or used in the ad-
ministration of a State program shall be available
to EPA upon request without restriction. If the in-
formation has been submitted to the State under a
claim of confidentiality, the State must submit that
claim to EPA when providing information under
this section. Any information obtained from a
State and subject to a claim of confidentiality will
be treated in accordance with the regulations in 40
CFR part 2. If EPA obtains from a State informa-
tion that is not claimed to be confidential, EPA
may make that information available to the public
without further notice.
(b) EPA shall furnish to States with approved
programs the information in its files not submitted
under a claim of confidentiality which the State
needs to implement its approved program. EPA
shall furnish to States with approved programs in-
formation submitted to EPA under a claim of con-
fidentiality, which the State needs to implement its
approved program, subject to the conditions in 40
CFR part 2.
§123.42 Receipt and use of Federal in-
formation.
Upon approving a State permit program, EPA
shall send to the State agency administering the
permit program any relevant information which
was collected by EPA. The Memorandum of
Agreement under § 123.24 shall provide for the
following, in such manner as the State Director
and the Regional Administrator shall agree:
(a) Prompt transmission to the State Director
from the Regional Administrator of copies of any
pending permit applications or any other relevant
information collected before the approval of the
State permit program and not already in the pos-
session of the State Director. When existing per-
mits are transferred to the State Director (e.g., for
purposes of compliance monitoring, enforcement
or reissuance), relevant information includes sup-
port files for permit issuance, compliance reports
and records of enforcement actions.
(b) Procedures to ensure that the State Director
will not issue a permit on the basis of any applica-
tion received from the Regional Administrator
which the Regional Administrator identifies as in-
complete or otherwise deficient until the State Di-
rector receives information sufficient to correct the
deficiency.
§123.43 Transmission of information
to EPA.
(a) Each State agency administering a permit
program shall transmit to the Regional Adminis-
trator copies of permit program forms and any
other relevant information to the extent and in the
manner agreed to by the State Director and Re-
gional Administrator in the Memorandum of
Agreement and not inconsistent with this part. Pro-
posed permits shall be prepared by State agencies
unless agreement to the contrary has been reached
under § 123.44(j). The Memorandum of Agree-
ment shall provide for the following:
(1) Prompt transmission to the Regional Admin-
istrator of a copy of all complete permit applica-
tions received by the State Director, except those
for which permit review has been waived under
§ 123.24(d). The State shall supply EPA with cop-
ies of permit applications for which permit review
has been waived whenever requested by EPA;
(2) Prompt transmission to the Regional Admin-
istrator of notice of every action taken by the State
agency related to the consideration of any permit
application or general permit, including a copy of
each proposed or draft permit and any conditions,
requirements, or documents which are related to
the proposed or draft permit or which affect the
authorization of the proposed permit, except those
for which permit review has been waived under
§ 123.24(d). The State shall supply EPA with cop-
ies of notices for which permit review has been
waived whenever requested by EPA; and
(3) Transmission to the Regional Administrator
of a copy of every issued permit following issu-
ance, along with any and all conditions, require-
ments, or documents which are related to or affect
the authorization of the permit.
(b) [Reserved]
(c) The State program shall provide for trans-
mission by the State Director to EPA of:
(1) Notices from publicly owned treatment
works under § 122.42(b) and 40 CFR part 403,
upon request of the Regional Administrator;
10
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§123.44
(2) A copy of any significant comments pre-
sented in writing pursuant to the public notice of
a draft permit and a summary of any significant
comments presented at any hearing on any draft
permit, except those comments regarding permits
for which permit review has been waived under
§ 123.24(d) and for which EPA has not otherwise
requested receipt, if:
(i) The Regional Administrator requests this in-
formation; or
(ii) The proposed permit contains requirements
significantly different from those contained in the
tentative determination and draft permit; or
(iii) Significant comments objecting to the ten-
tative determination and draft permit have been
presented at the hearing or in writing pursuant to
the public notice.
(d) Any State permit program shall keep such
records and submit to the Administrator such in-
formation as the Administrator may reasonably re-
quire to ascertain whether the State program com-
plies with the requirements of CWA or of this
part.
[48 FR 14178, Apr. 1, 1983, as amended at 60 FR 33931,
June 29, 1995]
§123.44 EPA review of and objections
to State permits.
(a)(l) The Memorandum of Agreement shall
provide a period of time (up to 90 days from re-
ceipt of proposed permits) to which the Regional
Administrator may make general comments upon,
objections to, or recommendations with respect to
proposed permits. EPA reserves the right to take
90 days to supply specific grounds for objection,
notwithstanding any shorter period specified in the
Memorandum of Agreement, when a general ob-
jection is filed within the review period specified
in the Memorandum of Agreement. The Regional
Administrator shall send a copy of any comment,
objection or recommendation to the permit appli-
cant.
(2) In the case of general permits, EPA shall
have 90 days from the date of receipt of the pro-
posed general permit to comment upon, object to
or make recommendations with respect to the pro-
posed general permit, and is not bound by any
shorter time limits set by the Memorandum of
Agreement for general comments, objections or
recommendations. The EPA Director, Office of
Water Enforcement and Permits may comment
upon, object to, or make recommendations with
respect to proposed general permits, except those
for separate storm sewers, on EPA's behalf.
(b)(l) Within the period of time provided under
the Memorandum of Agreement for making gen-
eral comments upon, objections to or rec-
ommendations with respect to proposed permits,
the Regional Administrator shall notify the State
Director of any objection to issuance of a pro-
posed permit (except as provided in paragraph
(a)(2) of this section for proposed general per-
mits). This notification shall set forth in writing
the general nature of the objection.
(2) Within 90 days following receipt of a pro-
posed permit to which he or she has objected
under paragraph (b)(l) of this section, or in the
case of general permits within 90 days after re-
ceipt of the proposed general permit, the Regional
Administrator, or in the case of general permits
other than for separate storm sewers, the Regional
Administrator or the EPA Director, Office of
Water Enforcement and Permits, shall set forth in
writing and transmit to the State Director:
(i) A statement of the reasons for the objection
(including the section of CWA or regulations that
support the objection), and
(ii) The actions that must be taken by the State
Director to eliminate the objection (including the
effluent limitations and conditions which the per-
mit would include if it were issued by the Re-
gional Administrator.)
NOTE: Paragraphs (a) and (b) of this section, in effect,
modify any existing agreement between EPA and the
State which provides less than 90 days for EPA to supply
the specific grounds for an objection. However, when an
agreement provides for an EPA review period of less than
90 days, EPA must file a general objection, in accordance
with paragraph (b)(l) of this section within the time spec-
ified in the agreement. This general objection must be fol-
lowed by a specific objection within the 90-day period.
This modification to MOA's allows EPA to provide de-
tailed information concerning acceptable permit condi-
tions, as required by section 402(d) of CWA. To avoid
possible confusion, MOA's should be changed to reflect
this arrangement.
(c) The Regional Administrator's objection to
the issuance of a proposed permit must be based
upon one or more of the following grounds:
(1) The permit fails to apply, or to ensure com-
pliance with, any applicable requirement of this
part;
NOTE: For example, the Regional Administrator may
object to a permit not requiring the achievement of re-
quired effluent limitations by applicable statutory dead-
lines.
(2) In the case of a proposed permit for which
notification to the Administrator is required under
section 402(b)(5) of CWA, the written rec-
ommendations of an affected State have not been
accepted by the permitting State and the Regional
Administrator finds the reasons for rejecting the
recommendations are inadequate;
(3) The procedures followed in connection with
formulation of the proposed permit failed in a ma-
terial respect to comply with procedures required
by CWA or by regulations thereunder or by the
Memorandum of Agreement;
11
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§123.44
(4) Any finding made by the State Director in
connection with the proposed permit misinterprets
CWA or any guidelines or regulations under
CWA, or misapplies them to the facts;
(5) Any provisions of the proposed permit relat-
ing to the maintenance of records, reporting, mon-
itoring, sampling, or the provision of any other in-
formation by the permittee are inadequate, in the
judgment of the Regional Administrator, to assure
compliance with permit conditions, including ef-
fluent standards and limitations or standards for
sewage sludge use and disposal required by CWA,
by the guidelines and regulations issued under
CWA, or by the proposed permit;
(6) In the case of any proposed permit with re-
spect to which applicable effluent standards and
limitations or standards for sewage sludge use and
disposal under sections 301, 302, 306, 307, 318,
403, and 405 of CWA have not yet been promul-
gated by the Agency, the proposed permit, in the
judgment of the Regional Administrator, fails to
carry out the provisions of CWA or of any regula-
tions issued under CWA; the provisions of this
paragraph apply to determinations made pursuant
to § 125.3(c)(2) in the absence of applicable guide-
lines, to best management practices under section
304(e) of CWA, which must be incorporated into
permits as requirements under section 301, 306,
307, 318, 403 or 405, and to sewage sludge use
and disposal requirements developed on a case-by-
case basis pursuant to section 405(d) of CWA, as
the case may be;
(7) Issuance of the proposed permit would in
any other respect be outside the requirements of
CWA, or regulations issued under CWA.
(8) The effluent limits of a permit fail to satisfy
the requirements of 40 CFR 122.44(d).
(9) For a permit issued by a Great Lakes State
or Tribe (as defined in 40 CFR 132.2), the permit
does not satisfy the conditions promulgated by the
State, Tribe, or EPA pursuant to 40 CFR part 132.
(d) Prior to notifying the State Director of an
objection based upon any of the grounds set forth
in paragraph (b) of this section, the Regional Ad-
ministrator:
(1) Shall consider all data transmitted pursuant
to § 123.43;
(2) May, if the information provided is inad-
equate to determine whether the proposed permit
meets the guidelines and requirements of CWA,
request the State Director to transmit to the Re-
gional Administrator the complete record of the
permit proceedings before the State, or any por-
tions of the record that the Regional Administrator
determines are necessary for review. If this request
is made within 30 days of receipt of the State sub-
mittal under § 123.43, it shall constitute an interim
objection to the issuance of the permit, and the
full period of time specified in the Memorandum
of Agreement for the Regional Administrator's re-
view shall recommence when the Regional Ad-
ministrator has received such record or portions of
the record; and
(3) May, in his or her discretion, and to the ex-
tent feasible within the period of time available
under the Memorandum of Agreement, afford to
interested persons an opportunity to comment on
the basis for the objection;
(e) Within 90 days of receipt by the State Di-
rector of an objection by the Regional Adminis-
trator, the State or interstate agency or any inter-
ested person may request that a public hearing be
held by the Regional Administrator on the objec-
tion. A public hearing in accordance with the pro-
cedures of § 124.12 (c) and (d) shall be held, and
public notice provided in accordance with
§124.10, whenever requested by the State or the
interstate agency which proposed the permit or if
warranted by significant public interest based on
requests received.
(f) A public hearing held under paragraph (e) of
this section shall be conducted by the Regional
Administrator, and, at the Regional Administra-
tor's discretion, with the assistance of an EPA
panel designated by the Regional Administrator, in
an orderly and expeditious manner.
(g) Following the public hearing, the Regional
Administrator shall reaffirm the original objection,
modify the terms of the objection, or withdraw the
objection, and shall notify the State of this deci-
sion.
(h)(l) If no public hearing is held under para-
graph (e) of this section and the State does not re-
submit a permit revised to meet the Regional Ad-
ministrator's objection within 90 days of receipt of
the objection, the Regional Administrator may
issue the permit in accordance with parts 121, 122
and 124 of this chapter and any other guidelines
and requirements of CWA.
(2) If a public hearing is held under paragraph
(e) of this section, the Regional Administrator
does not withdraw the objection, and the State
does not resubmit a permit revised to meet the Re-
gional Administrator's objection or modified ob-
jection within 30 days of the date of the Regional
Administrator's notification under paragraph (g) of
this section, the Regional Administrator may issue
the permit in accordance with parts 121, 122 and
124 of this chapter and any other guidelines and
requirements of CWA.
(3) Exclusive authority to issue the permit
passes to EPA when the times set out in this para-
graph expire.
(i) In the case of proposed general permits for
discharges other than from separate storm sewers
insert "or the EPA Director, Office of Water En-
forcement and Permits" after "Regional Adminis-
12
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§123.45
trator" whenever it appears in paragraphs (c)
through (h) of this section.
(j) The Regional Administrator may agree, in
the Memorandum of Agreement under § 123.24, to
review draft permits rather than proposed permits.
In such a case, a proposed permit need not be pre-
pared by the State and transmitted to the Regional
Administrator for review in accordance with this
section unless the State proposes to issue a permit
which differs from the draft permit reviewed by
the Regional Administrator, the Regional Adminis-
trator has objected to the draft permit, or there is
significant public comment.
[48 FR 14178, Apr. 1, 1983, as amended at 54 FR 18785,
May 2, 1989; 54 FR 23896, June 2, 1989; 60 FR 15386,
Mar. 23, 1995]
§123.45 Noncompliance and program
reporting by the Director.
The Director shall prepare quarterly, semi-an-
nual, and annual reports as detailed below. When
the State is the permit-issuing authority, the State
Director shall submit all reports required under
this section to the Regional Administrator, and the
EPA Region in turn shall submit the State reports
to EPA Headquarters. When EPA is the permit-is-
suing authority, the Regional Administrator shall
submit all reports required under this section to
EPA Headquarters.
(a) Quarterly reports. The Director shall submit
quarterly narrative reports for major permittees as
follows:
(1) Format. The report shall use the following
format:
(i) Provide a separate list of major NPDES per-
mittees which shall be subcategorized as non-
POTWs, POTWs, and Federal permittees.
(ii) Alphabetize each list by permittee name.
When two or more permittees have the same
name, the permittee with the lowest permit number
shall be entered first.
(iii) For each permittee on the list, include the
following information in the following order:
(A) The name, location, and permit number.
(B) A brief description and date of each in-
stance of noncompliance for which paragraph
(a)(2) of this section requires reporting. Each list-
ing shall indicate each specific provision of para-
graph (a)(2) (e.g., (ii)(A) thru (iii)(G)) which de-
scribes the reason for reporting the violation on
the quarterly report.
(C) The date(s), and a brief description of the
action(s) taken by the Director to ensure compli-
ance.
(D) The status of the instance(s) of noncompli-
ance and the date noncompliance was resolved.
(E) Any details which tend to explain or miti-
gate the instance(s) of noncompliance.
(2) Instances of noncompliance by major dis-
chargers to be reported—(i) General. Instances of
noncompliance, as defined in paragraphs (a)(2)(ii)
and (iii) of this section, by major dischargers shall
be reported in successive reports until the non-
compliance is reported as resolved (i.e., the per-
mittee is no longer violating the permit conditions
reported as noncompliance in the QNCR). Once an
instance of noncompliance is reported as resolved
in the QNCR, it need not appear in subsequent re-
ports.
(A) All reported violations must be listed on the
QNCR for the reporting period when the violation
occurred, even if the violation is resolved during
that reporting period.
(B) All permittees under current enforcement
orders (i.e., administrative and judicial orders and
consent decrees) for previous instances of non-
compliance must be listed in the QNCR until the
orders have been satisfied in full and the permittee
is in compliance with permit conditions. If the per-
mittee is in compliance with the enforcement
order, but has not achieved full compliance with
permit conditions, the compliance status shall be
reported as "resolved pending," but the permittee
will continue to be listed on the QNCR.
(ii) Category I noncompliance. The following
instances of noncompliance by major dischargers
are Category I noncompliance:
(A) Violations of conditions in enforcement or-
ders except compliance schedules and reports.
(B) Violations of compliance schedule mile-
stones for starting construction, completing con-
struction, and attaining final compliance by 90
days or more from the date of the milestone speci-
fied in an enforcement order or a permit.
(C) Violations of permit effluent limits that ex-
ceed the Appendix A "Criteria for Noncompliance
Reporting in the NPDES Program".
(D) Failure to provide a compliance schedule
report for final compliance or a monitoring report.
This applies when the permittee has failed to sub-
mit a final compliance schedule progress report,
pretreatment report, or a Discharge Monitoring Re-
port within 30 days from the due date specified in
an enforcement order or a permit.
(iii) Category II noncompliance. Category II
noncompliance includes violations of permit con-
ditions which the Agency believes to be of sub-
stantial concern and may not meet the Category I
criteria. The following are instances of noncompli-
ance which must be reported as Category II non-
compliance unless the same violation meets the
criteria for Category I noncompliance:
(A) (1) Violation of a permit limit;
(2) An unauthorized bypass;
(3) An unpermitted discharge; or
(4) A pass-through of pollutants which causes
or has the potential to cause a water quality prob-
13
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§123.45
lem (e.g., fish kills, oil sheens) or health problems
(e.g., beach closings, fishing bans, or other restric-
tions of beneficial uses).
(B) Failure of an approved POTW to implement
its approved pretreatment program adequately in-
cluding failure to enforce industrial pretreatment
requirements on industrial users as required in the
approved program.
(C) Violations of any compliance schedule mile-
stones (except those milestones listed in paragraph
(a)(2)(ii)(B) of this section) by 90 days or more
from the date specified in an enforcement order or
a permit.
(D) Failure of the permittee to provide reports
(other than those reports listed in paragraph
(a)(2)(ii)(D) of this section) within 30 days from
the due date specified in an enforcement order or
a permit.
(E) Instances when the required reports pro-
vided by the permittee are so deficient or incom-
plete as to cause misunderstanding by the Director
and thus impede the review of the status of com-
pliance.
(F) Violations of narrative requirements (e.g.,
requirements to develop Spill Prevention Control
and Countermeasure Plans and requirements to im-
plement Best Management Practices), which are of
substantial concern to the regulatory agency.
(G) Any other violation or group of permit vio-
lations which the Director or Regional Adminis-
trator considers to be of substantial concern.
(b) Semi-annual statistical summary report.
Summary information shall be provided twice a
year on the number of major permittees with two
or more violations of the same monthly average
permit limitation in a six month period, including
those otherwise reported under paragraph (a) of
this section. This report shall be submitted at the
same time, according to the Federal fiscal year
calendar, as the first and third quarter QNCRs.
(c) Annual reports for NPDES—(1) Annual non-
compliance report. Statistical reports shall be sub-
mitted by the Director on nonmajor NPDES per-
mittees indicating the total number reviewed, the
number of noncomplying nonmajor permittees, the
number of enforcement actions, and number of
permit modifications extending compliance dead-
lines. The statistical information shall be organized
to follow the types of noncompliance listed in
paragraph (a) of this section.
(2) A separate list of nonmajor discharges
which are one or more years behind in construc-
tion phases of the compliance schedule shall also
be submitted in alphabetical order by name and
permit number.
(d) Schedule—(1) For all quarterly reports. On
the last working day of May, August, November,
and February, the State Director shall submit to
the Regional Administrator information concerning
noncompliance with NPDES permit requirements
by major dischargers in the State in acordance
with the following schedule. The Regional Admin-
istrator shall prepare and submit information for
EPA-issued permits to EPA Headquarters in ac-
cordance with the same schedule:
QUARTERS COVERED BY REPORTS ON
NONCOMPLIANCE BY MAJOR DISCHARGERS:
[Date for completion of reports]
January, February, and March 1 May 31
April, May, and June 1 August 31
July, August, and September 1 November 30
October, November, and Decem- 1 February 28
ber.
1 Reports must be made available to the public for inspec-
tion and copying on this date.
(2) For all annual reports. The period for an-
nual reports shall be for the calendar year ending
December 31, with reports completed and avail-
able to the public no more than 60 days later.
(e) Sludge noncompliance program reports. The
Director shall prepare and submit semi-annual
noncompliance and annual program reports as re-
quired under 40 CFR 501.21. The Director may
include this information in reports submitted in ac-
cordance with paragraphs (a) through (d) of this
section.
(Approved by the Office of Management and Budget
under control number 2040-0082)
[48 FR 14178, Apr. 1, 1983, as amended at 50 FR 34653,
Aug. 26, 1985; 54 FR 18785, May 2, 1989]
APPENDIX A TO § 123.45—CRITERIA FOR
NONCOMPLIANCE REPORTING IN THE NPDES PROGRAM
This appendix describes the criteria for reporting viola-
tions of NPDES permit effluent limits in the quarterly
noncompliance report (QNCR) as specified under
§123.45(a)(2)(ii)(c). Any violation of an NPDES permit
is a violation of the Clean Water Act (CWA) for which
the permittee is liable. An agency's decision as to what
enforcement action, if any, should be taken in such cases,
will be based on an analysis of facts and legal require-
ments.
Violations of Permit Effluent Limits
Cases in which violations of permit effluent limits must
be reported depend upon the magnitude and/or frequency
of the violation. Effluent violations should be evaluated
on a parameter-by-parameter and outfall-by-outfall basis.
The criteria for reporting effluent violations are as fol-
lows:
a. Reporting Criteria for Violations of Monthly Average
Permit Limits—Magnitude and Frequency
Violations of monthly average effluent limits which ex-
ceed or equal the product of the Technical Review Cri-
teria (TRC) times the effluent limit, and occur two
months in a six month period must be reported. TRCs are
for two groups of pollutants.
Group I Pollutants—TRC=1.4
Group II Pollutants—TRC=1.2
14
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§123.46
b. Reporting Criteria for Chronic Violations of Monthly
Average Limits
Chronic violations must be reported in the QNCR if the
monthly average permit limits are exceeded any four
months in a six-month period. These criteria apply to all
Group I and Group II pollutants.
GROUP I POLLUTANTS—TRC=i.4
Oxygen Demand
Biochemical Oxygen Demand
Chemical Oxygen Demand
Total Oxygen Demands
Total Organic Carbon
Other
Solids
Total Suspended Solids (Residues)
Total Dissolved Solids (Residues)
Other
Nutrients
Inorganic Phosphorus Compounds
Inorganic Nitrogen Compounds
Other
Detergents and Oils
MBAS
NTA
Oil and Grease
Other detergents or algicides
Minerals
Calcium
Chloride
Fluoride
Magnesium
Sodium
Potassium
Sulfur
Sulfate
Total Alkalinity
Total Hardness
Other Minerals
Metals
Aluminum
Cobalt
Iron
Vanadium
GROUP II POLLUTANTS—TRC=i.2
METALS (ALL FORMS)
Other metals not specifically listed under Group I
Inorganic
Cyanide
Total Residual Chlorine
Organics
All organics are Group II except those specifically list-
ed under Group I.
§ 123.46 Individual control strategies.
(a) Not later than February 4, 1989, each State
shall submit to the Regional Administrator for re-
view, approval, and implementation an individual
control strategy for each point source identified by
the State pursuant to section 304(1)(1)(C) of the
Act which discharges to a water identified by the
State pursuant to section 304(1)(1)(B) which will
produce a reduction in the discharge of toxic pol-
lutants from the point sources identified under sec-
tion 304(1)(1)(C) through the establishment of ef-
fluent limitations under section 402 of the CWA
and water quality standards under section
303(c)(2)(B) of the CWA, which reduction is suf-
ficient, in combination with existing controls on
point and nonpoint sources of pollution, to achieve
the applicable water quality standard as soon as
possible, but not later than three years after the
date of establishment of such strategy.
(b) The Administrator shall approve or dis-
approve the control strategies submitted by any
State pursuant to paragraph (a) of this section, not
later than June 4, 1989. If a State fails to submit
control strategies in accordance with paragraph (a)
of this section or the Administrator does not ap-
prove the control strategies submitted by such
State in accordance with paragraph (a), then, not
later than June 4, 1990, the Administrator in co-
operation with such State and after notice and op-
portunity for public comment, shall implement the
requirements of CWA section 304(1)(1) in such
State. In the implementation of such requirements,
the Administrator shall, at a minimum, consider
for listing under CWA section 304(1)(1) any navi-
gable waters for which any person submits a peti-
tion to the Administrator for listing not later than
October 1, 1989.
(c) For the purposes of this section the term in-
dividual control strategy, as set forth in section
304(1) of the CWA, means a final NPDES permit
with supporting documentation showing that efflu-
ent limits are consistent with an approved
wasteload allocation, or other documentation
which shows that applicable water quality stand-
ards will be met not later than three years after the
individual control strategy is established. Where a
State is unable to issue a final permit on or before
February 4, 1989, an individual control strategy
may be a draft permit with an attached schedule
(provided the State meets the schedule for issuing
the final permit) indicating that the permit will be
issued on or before February 4, 1990. If a point
source is subject to section 304(1)(1)(C) of the
CWA and is also subject to an on-site response
action under sections 104 or 106 of the Com-
prehensive Environmental Response, Compensa-
tion, and Liability Act of 1980 (CERCLA), (42
U.S.C. 9601 et seq.), an individual control strategy
may be the decision document (which incorporates
15
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§123.61
the applicable or relevant and appropriate require-
ments under the CWA) prepared under sections
104 or 106 of CERCLA to address the release or
threatened release of hazardous substances to the
environment.
(d) A petition submitted pursuant to section
304(1)(3) of the CWA must be submitted to the
appropriate Regional Administrator. Petitions must
identify a waterbody in sufficient detail so that
EPA is able to determine the location and bound-
aries of the waterbody. The petition must also
identify the list or lists for which the waterbody
qualifies, and the petition must explain why the
waterbody satisfies the criteria for listing under
CWA section 304(1) and 40 CFR 130.10(d)(6).
(e) If the Regional Administrator disapproves
one or more individual control strategies, or if a
State fails to provide adequate public notice and
an opportunity to comment on the ICSs, then, not
later than June 4, 1989, the Regional Adminis-
trator shall give a notice of approval or dis-
approval of the individual control strategies sub-
mitted by each State pursuant to this section as
follows:
(1) The notice of approval or disapproval given
under this paragraph shall include the following:
(i) The name and address of the EPA office that
reviews the State's submittals.
(ii) A brief description of the section 304(1)
process.
(iii) A list of ICSs disapproved under this sec-
tion and a finding that the ICSs will not meet all
applicable review criteria under this section and
section 304(1) of the CWA.
(iv) If the Regional Administrator determines
that a State did not provide adequate public notice
and an opportunity to comment on the waters,
point sources, or ICSs prepared pursuant to section
304(1), or if the Regional Administrator chooses to
exercise his or her discretion, a list of the ICSs ap-
proved under this section, and a finding that the
ICSs satisfy all applicable review criteria.
(v) The location where interested persons may
examine EPA's records of approval and dis-
approval.
(vi) The name, address, and telephone number
of the person at the Regional Office from whom
interested persons may obtain more information.
(vii) Notice that written petitions or comments
are due within 120 days.
(2) The Regional Administrator shall provide
the notice of approval or disapproval given under
this paragraph to the appropriate State Director.
The Regional Administrator shall publish a notice
of availability, in a daily or weekly newspaper
with State-wide circulation or in the FEDERAL
REGISTER, for the notice of approval or dis-
approval. The Regional Administrator shall also
provide written notice to each discharger identified
under section 304(1)(1)(C), that EPA has listed the
discharger under section 304(1)(1)(C).
(3) As soon as practicable but not later than
June 4, 1990, the Regional Offices shall issue a
response to petitions or comments received under
section 304(1). The response to comments shall be
given in the same manner as the notice described
in paragraph (e) of this section except for the fol-
lowing changes:
(i) The lists of ICSs reflecting any changes
made pursuant to comments or petitions received.
(ii) A brief description of the subsequent steps
in the section 304(1) process.
(f) EPA shall review, and approve or dis-
approve, the individual control strategies prepared
under section 304(1) of the CWA, using the appli-
cable criteria set forth in section 304(1) of the
CWA, and in 40 CFR part 122, including
§ 122.44(d). At any time after the Regional Ad-
ministrator disapproves an ICS (or conditionally
aproves a draft permit as an ICS), the Regional
Office may submit a written notification to the
State that the Regional Office intends to issue the
ICS. Upon mailing the notification, and notwith-
standing any other regulation, exclusive authority
to issue the permit passes to EPA.
[54 FR 256, Jan. 4, 1989, as amended at 54 FR 23896,
June 2, 1989; 57 FR 33049, July 24, 1992]
Sub part D—Program Approval,
Revision, and Withdrawal
§ 123.61 Approval process.
(a) After determining that a State program sub-
mission is complete, EPA shall publish notice of
the State's application in the FEDERAL REGISTER,
and in enough of the largest newspapers in the
State to attract statewide attention, and shall mail
notice to persons known to be interested in such
matters, including all persons on appropriate State
and EPA mailing lists and all permit holders and
applicants within the State. The notice shall:
(1) Provide a comment period of not less than
45 days during which interested members of the
public may express their views on the State pro-
gram;
(2) Provide for a public hearing within the State
to be held no less than 30 days after notice is pub-
lished in the FEDERAL REGISTER;
(3) Indicate the cost of obtaining a copy of the
State's submission;
(4) Indicate where and when the State's submis-
sion may be reviewed by the public;
(5) Indicate whom an interested member of the
public should contact with any questions; and
(6) Briefly outline the fundamental aspects of
the State's proposed program, and the process for
EPA review and decision.
16
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§123.62
(b) Within 90 days of the receipt of a complete
program submission under § 123.21 the Adminis-
trator shall approve or disapprove the program
based on the requirements of this part and of
CWA and taking into consideration all comments
received. A responsiveness summary shall be pre-
pared by the Regional Office which identifies the
public participation activities conducted, describes
the matters presented to the public, summarizes
significant comments received and explains the
Agency's response to these comments.
(c) If the Administrator approves the State's
program he or she shall notify the State and pub-
lish notice in the FEDERAL REGISTER. The Re-
gional Administrator shall suspend the issuance of
permits by EPA as of the date of program ap-
proval.
(d) If the Administrator disapproves the State
program he or she shall notify the State of the rea-
sons for disapproval and of any revisions or modi-
fications to the State program which are necessary
to obtain approval.
[48 FR 14178, Apr. 1, 1983; 50 FR 6941, Feb. 19, 1985]
§123.62 Procedures for revision of
State programs.
(a) Either EPA or the approved State may initi-
ate program revision. Program revision may be
necessary when the controlling Federal or State
statutory or regulatory authority is modified or
supplemented. The State shall keep EPA fully in-
formed of any proposed modifications to its basic
statutory or regulatory authority, its forms, proce-
dures, or priorities. Grounds for program revision
include cases where a State's existing approved
program includes authority to issue NPDES per-
mits for activities on a Federal Indian reservation
and an Indian Tribe has subsequently been ap-
proved for assumption of the NPDES program
under 40 CFR part 123 extending to those lands.
(b) Revision of a State program shall be accom-
plished as follows:
(1) The State shall submit a modified program
description, Attorney General's statement, Memo-
randum of Agreement, or such other documents as
EPA determines to be necessary under the cir-
cumstances.
(2) Whenever EPA determines that the proposed
program revision is substantial, EPA shall issue
public notice and provide an opportunity to com-
ment for a period of at least 30 days. The public
notice shall be mailed to interested persons and
shall be published in the FEDERAL REGISTER and
in enough of the largest newspapers in the State
to provide Statewide coverage. The public notice
shall summarize the proposed revisions and pro-
vide for the opportunity to request a public hear-
ing. Such a hearing will be held if there is signifi-
cant public interest based on requests received.
(3) The Administrator shall approve or dis-
approve program revisions based on the require-
ments of this part and of the CWA.
(4) A program revision shall become effective
upon the approval of the Administrator. Notice of
approval of any substantial revision shall be pub-
lished in the FEDERAL REGISTER. Notice of ap-
proval of non-substantial program revisions may
be given by a letter from the Administrator to the
State Governor or his designee.
(c) States with approved programs shall notify
EPA whenever they propose to transfer all or part
of any program from the approved State agency to
any other State agency, and shall identify any new
division of responsibilities among the agencies in-
volved. The new agency is not authorized to ad-
minister the program until approved by the Ad-
ministrator under paragraph (b) of this section. Or-
ganizational charts required under § 123.22(b) shall
be revised and resubmitted.
(d) Whenever the Administrator has reason to
believe that circumstances have changed with re-
spect to a State program, he may request, and the
State shall provide, a supplemental Attorney Gen-
eral's statement, program description, or such
other documents or information as are necessary.
(e) State NPDES programs only. All new pro-
grams must comply with these regulations imme-
diately upon approval. Any approved State section
402 permit program which requires revision to
conform to this part shall be so revised within one
year of the date of promulgation of these regula-
tions, unless a State must amend or enact a statute
in order to make the required revision in which
case such revision shall take place within 2 years,
except that revision of State programs to imple-
ment the requirements of 40 CFR part 403
(pretreatment) shall be accomplished as provided
in 40 CFR 403.10. In addition, approved States
shall submit, within 6 months, copies of their per-
mit forms for EPA review and approval. Approved
States shall also assure that permit applicants,
other than POTWs, submit, as part of their appli-
cation, the information required under §§ 124.4(d)
and 122.21 (g) or (h), as appropriate.
(f) Revision of a State program by a Great
Lakes State or Tribe (as defined in 40 CFR 132.2)
to conform to section 118 of the CWA and 40
CFR part 132 shall be accomplished pursuant to
40 CFR part 132.
[48 FR 14178, Apr. 1, 1983, as amended at 49 FR 31842,
Aug. 8, 1984; 50 FR 6941, Feb. 19, 1985; 53 FR 33007,
Sept. 6, 1988; 58 FR 67983, Dec. 22, 1993; 60 FR 15386,
Mar. 23, 1995]
17
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§123.63
§123.63 Criteria for withdrawal of
State programs.
(a) The Administrator may withdraw program
approval when a State program no longer complies
with the requirements of this part, and the State
fails to take corrective action. Such circumstances
include the following:
(1) Where the State's legal authority no longer
meets the requirements of this part, including:
(i) Failure of the State to promulgate or enact
new authorities when necessary; or
(ii) Action by a State legislature or court strik-
ing down or limiting State authorities.
(2) Where the operation of the State program
fails to comply with the requirements of this part,
including:
(i) Failure to exercise control over activities re-
quired to be regulated under this part, including
failure to issue permits;
(ii) Repeated issuance of permits which do not
conform to the requirements of this part; or
(iii) Failure to comply with the public participa-
tion requirements of this part.
(3) Where the State's enforcement program fails
to comply with the requirements of this part, in-
cluding:
(i) Failure to act on violations of permits or
other program requirements;
(ii) Failure to seek adequate enforcement pen-
alties or to collect administrative fines when im-
posed; or
(iii) Failure to inspect and monitor activities
subject to regulation.
(4) Where the State program fails to comply
with the terms of the Memorandum of Agreement
required under § 123.24.
(5) Where the State fails to develop an adequate
regulatory program for developing water quality-
based effluent limits in NPDES permits.
(6) Where a Great Lakes State or Tribe (as de-
fined in 40 CFR 132.2) fails to adequately incor-
porate the NPDES permitting implementation pro-
cedures promulgated by the State, Tribe, or EPA
pursuant to 40 CFR part 132 into individual per-
mits.
(b) [Reserved]
[48 FR 14178, Apr. 1, 1983; 50 FR 6941, Feb. 19, 1985,
as amended at 54 FR 23897, June 2, 1989; 60 FR 15386,
Mar. 23, 1995]
§123.64 Procedures for withdrawal of
State programs.
(a) A State with a program approved under this
part may voluntarily transfer program responsibil-
ities required by Federal law to EPA by taking the
following actions, or in such other manner as may
be agreed upon with the Administrator.
(1) The State shall give the Administrator 180
days notice of the proposed transfer and shall sub-
mit a plan for the orderly transfer of all relevant
program information not in the possession of EPA
(such as permits, permit files, compliance files, re-
ports, permit applications) which are necessary for
EPA to administer the program.
(2) Within 60 days of receiving the notice and
transfer plan, the Administrator shall evaluate the
State's transfer plan and shall identify any addi-
tional information needed by the Federal govern-
ment for program administration and/or identify
any other deficiencies in the plan.
(3) At least 30 days before the transfer is to
occur the Administrator shall publish notice of the
transfer in the FEDERAL REGISTER and in enough
of the largest newspapers in the State to provide
Statewide coverage, and shall mail notice to all
permit holders, permit applicants, other regulated
persons and other interested persons on appro-
priate EPA and State mailing lists.
(b) The following procedures apply when the
Administrator orders the commencement of pro-
ceedings to determine whether to withdraw ap-
proval of a State program.
(1) Order. The Administrator may order the
commencement of withdrawal proceedings on his
or her own initiative or in response to a petition
from an interested person alleging failure of the
State to comply with the requirements of this part
as set forth in § 123.63. The Administrator shall
respond in writing to any petition to commence
withdrawal proceedings. He may conduct an infor-
mal investigation of the allegations in the petition
to determine whether cause exists to commence
proceedings under this paragraph. The Administra-
tor's order commencing proceedings under this
paragraph shall fix a time and place for the com-
mencement of the hearing and shall specify the al-
legations against the State which are to be consid-
ered at the hearing. Within 30 days the State shall
admit or deny these allegations in a written an-
swer. The party seeking withdrawal of the State's
program shall have the burden of coming forward
with the evidence in a hearing under this para-
graph.
(2) Definitions. For purposes of this paragraph
the definitions of "Act," "Administrative Law
Judge," "Hearing Clerk," and "Presiding Offi-
cer" in 40 CFR 22.03 apply in addition to the fol-
lowing:
(i) Party means the petitioner, the State, the
Agency, and any other person whose request to
participate as a party is granted.
(ii) Person means the Agency, the State and any
individual or organization having an interest in the
subject matter of the proceeding.
(iii) Petitioner means any person whose petition
for commencement of withdrawal proceedings has
been granted by the Administrator.
18
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§123.64
(3) Procedures, (i) The following provisions of
40 CFR part 22 (Consolidated Rules of Practice)
are applicable to proceedings under this paragraph:
(A) § 22.02—(use of number/gender);
(B) § 22.04(c)—(authorities of Presiding Offi-
cer);
(C) § 22.06—(filing/service of rulings and or-
ders);
(D) § 22.09—(examination of filed documents);
(E)§22.19(a), (b) and (c)—(prehearing con-
ference);
(F) § 22.22—(evidence);
(G) § 22.23—(objections/offers of proof);
(H) § 22.25—(filing the transcript); and
(I) § 22.26—(findings/conclusions).
(ii) The following provisions are also applica-
ble:
(A) Computation and extension of time—(7)
Computation. In computing any period of time
prescribed or allowed in these rules of practice,
except as otherwise provided, the day of the event
from which the designated period begins to run
shall not be included. Saturdays, Sundays, and
Federal legal holidays shall be included. When a
stated time expires on a Saturday, Sunday, or legal
holiday, the stated time period shall be extended
to include the next business day.
(2) Extensions of time. The Administrator, Re-
gional Administrator, or Presiding Officer, as ap-
propriate, may grant an extension of time for the
filing of any pleading, document, or motion (;')
upon timely motion of a party to the proceeding,
for good cause shown, and after consideration of
prejudice to other parties, or (;';') upon his own mo-
tion. Such a motion by a party may only be made
after notice to all other parties, unless the movant
can show good cause why serving notice is im-
practicable. The motion shall be filed in advance
of the date on which the pleading, document or
motion is due to be filed, unless the failure of a
party to make timely motion for extension of time
was the result of excusable neglect.
(3) The time for commencement of the hearing
shall not be extended beyond the date set in the
Administrator's order without approval of the Ad-
ministrator.
(B) Ex parte discussion of proceedings. At no
time after the issuance of the order commencing
proceedings shall the Administrator, the Regional
Administrator, the Regional Judicial Officer, the
Presiding Officer, or any other person who is like-
ly to advise these officials in the decision on the
case, discuss ex parte the merits of the proceeding
with any interested person outside the Agency,
with any Agency staff member who performs a
prosecutorial or investigative function in such pro-
ceeding or a factually related proceeding, or with
any representative of such person. Any ex parte
memorandum or other communication addressed
to the Administrator, the Regional Administrator,
the Regional Judicial Officer, or the Presiding Of-
ficer during the pendency of the proceeding and
relating to the merits thereof, by or on behalf of
any party, shall be regarded as argument made in
the proceeding and shall be served upon all other
parties. The other parties shall be given an oppor-
tunity to reply to such memorandum or commu-
nication.
(C) Intervention—(7) Motion. A motion for
leave to intervene in any proceeding conducted
under these rules of practice must set forth the
grounds for the proposed intervention, the position
and interest of the movant and the likely impact
that intervention will have on the expeditious
progress of the proceeding. Any person already a
party to the proceeding may file an answer to a
motion to intervene, making specific reference to
the factors set forth in the foregoing sentence and
paragraph (b)(3)(ii)(C)(_?) of this section, within
ten (10) days after service of the motion for leave
to intervene.
(2) However, motions to intervene must be filed
within 15 days from the date the notice of the Ad-
ministrator's order is first published.
(3) Disposition. Leave to intervene may be
granted only if the movant demonstrates that (;')
his presence in the proceeding would not unduly
prolong or otherwise prejudice that adjudication of
the rights of the original parties; (;';') the movant
will be adversely affected by a final order; and
(;';';') the interests of the movant are not being ade-
quately represented by the original parties. The in-
tervenor shall become a full party to the proceed-
ing upon the granting of leave to intervene.
(¥) Amicus curiae. Persons not parties to the
proceeding who wish to file briefs may so move.
The motion shall identify the interest of the appli-
cant and shall state the reasons why the proposed
amicus brief is desirable. If the motion is granted,
the Presiding Officer or Administrator shall issue
an order setting the time for filing such brief. An
amicus curiae is eligible to participate in any
briefing after his motion is granted, and shall be
served with all briefs, reply briefs, motions, and
orders relating to issues to be briefed.
(D) Motions—(7) General. All motions, except
those made orally on the record during a hearing,
shall (;') be in writing; (;';') state the grounds there-
for with particularity; (;;';') set forth the relief or
order sought; and (;'v) be accompanied by any affi-
davit, certificate, other evidence, or legal memo-
randum relied upon. Such motions shall be served
as provided by paragraph (b)(4) of this section.
(2) Response to motions. A party's response to
any written motion must be filed within ten (10)
days after service of such motion, unless addi-
tional time is allowed for such response. The re-
sponse shall be accompanied by any affidavit, cer-
19
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§123.64
tificate, other evidence, or legal memorandum re-
lied upon. If no response is filed within the des-
ignated period, the parties may be deemed to have
waived any objection to the granting of the mo-
tion. The Presiding Officer, Regional Adminis-
trator, or Administrator, as appropriate, may set a
shorter time for response, or make such other or-
ders concerning the disposition of motions as they
deem appropriate.
(_?) Decision. The Administrator shall rule on all
motions filed or made after service of the rec-
ommended decision upon the parties. The Presid-
ing Officer shall rule on all other motions. Oral ar-
gument on motions will be permitted where the
Presiding Officer, Regional Administrator, or the
Administrator considers it necessary or desirable.
(4) Record of proceedings, (i) The hearing shall
be either stenographically reported verbatim or
tape recorded, and thereupon transcribed by an of-
ficial reporter designated by the Presiding Officer;
(ii) All orders issued by the Presiding Officer,
transcripts of testimony, written statements of po-
sition, stipulations, exhibits, motions, briefs, and
other written material of any kind submitted in the
hearing shall be a part of the record and shall be
available for inspection or copying in the Office of
the Hearing Clerk, upon payment of costs. Inquir-
ies may be made at the Office of the Administra-
tive Law Judges, Hearing Clerk, 401 M Street,
SW, Washington, DC 20460;
(iii) Upon notice to all parties the Presiding Of-
ficer may authorize corrections to the transcript
which involves matters of substance;
(iv) An original and two (2) copies of all writ-
ten submissions to the hearing shall be filed with
the Hearing Clerk;
(v) A copy of each submission shall be served
by the person making the submission upon the
Presiding Officer and each party of record. Service
under this paragraph shall take place by mail or
personal delivery;
(vi) Every submission shall be accompanied by
an acknowledgement of service by the person
served or proof of service in the form of a state-
ment of the date, time, and manner of service and
the names of the persons served, certified by the
person who made service, and;
(vii) The Hearing Clerk shall maintain and fur-
nish to any person upon request, a list containing
the name, service address, and telephone number
of all parties and their attorneys or duly authorized
representatives.
(5) Participation by a person not a party. A
person who is not a party may, in the discretion
of the Presiding Officer, be permitted to make a
limited appearance by making oral or written
statement of his/her position on the issues within
such limits and on such conditions as may be
fixed by the Presiding Officer, but he/she may not
otherwise participate in the proceeding.
(6) Rights of parties, (i) All parties to the pro-
ceeding may:
(A) Appear by counsel or other representative in
all hearing and pre-hearing proceedings;
(B) Agree to stipulations of facts which shall be
made a part of the record.
(7) Recommended decision, (i) Within 30 days
after the filing of proposed findings and conclu-
sions, and reply briefs, the Presiding Officer shall
evaluate the record before him/her, the proposed
findings and conclusions and any briefs filed by
the parties and shall prepare a recommended deci-
sion, and shall certify the entire record, including
the recommended decision, to the Administrator.
(ii) Copies of the recommended decision shall
be served upon all parties.
(iii) Within 20 days after the certification and
filing of the record and recommended decision, all
parties may file with the Administrator exceptions
to the recommended decision and a supporting
brief.
(8) Decision by Administrator, (i) Within 60
days after the certification of the record and filing
of the Presiding Officer's recommeded decision,
the Administrator shall review the record before
him and issue his own decision.
(ii) If the Administrator concludes that the State
has administered the program in conformity with
the appropriate Act and regulations his decision
shall constitute "final agency action" within the
meaning of 5 U.S.C. 704.
(iii) If the Administrator concludes that the
State has not administered the program in con-
formity with the appropriate Act and regulations
he shall list the deficiencies in the program and
provide the State a reasonable time, not to exceed
90 days, to take such appropriate corrective action
as the Administrator determines necessary.
(iv) Within the time prescribed by the Adminis-
trator the State shall take such appropriate correc-
tive action as required by the Administrator and
shall file with the Administrator and all parties a
statement certified by the State Director that such
appropriate corrective action has been taken.
(v) The Administrator may require a further
showing in addition to the certified statement that
corrective action has been taken.
(vi) If the State fails to take such appropriate
corrective action and file a certified statement
thereof within the time prescribed by the Adminis-
trator, the Administrator shall issue a supple-
mentary order withdrawing approval of the State
program. If the State takes such appropriate cor-
rective action, the Administrator shall issue a sup-
plementary order stating that approval of authority
is not withdrawn.
20
-------
§123.64
(vii) The Administrator's supplementary order any person from complying with the requirements
shall constitute final Agency action within the of State law, nor does it affect the validity of ac-
meaning of 5 U.S.C. 704. tions by the State prior to withdrawal.
(viii) Withdrawal of authorization under this [48 FR 14178j Apr u 1983. 50 FR 6941> Feb 19> 1985j
section and the appropriate Act does not relieve as amended at 57 FR 5335, Feb. 13, 1992]
21
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PART 124—PROCEDURES FOR
DECISIONMAKING
Subpart A—General Program
Requirements
Sec.
124.1 Purpose and scope.
124.2 Definitions.
124.3 Application for a permit.
124.4 Consolidation of permit processing.
124.5 Modification, revocation and reissuance, or termi-
nation of permits.
124.6 Draft permits.
124.7 Statement of basis.
124.8 Fact sheet.
124.9 Administrative record for draft permits when EPA
is the permitting authority.
124.10 Public notice of permit actions and public com-
ment period.
124.11 Public comments and requests for public hear-
ings.
124.12 Public hearings.
124.13 Obligation to raise issues and provide informa-
tion during the public comment period.
124.14 Reopening of the public comment period.
124.15 Issuance and effective date of permit.
124.16 Stays of contested permit conditions.
124.17 Response to comments.
124.18 Administrative record for final permit when EPA
is the permitting authority.
124.19 Appeal of RCRA, UIC and PSD permits.
124.20 Computation of time.
124.21 Effective date of part 124.
Subpart B—Specific Procedures Applicable
to RCRA Permits
124.31 Pre-application public meeting and notice.
124.32 Public notice requirements at the application
stage.
124.33 Information repository.
Subpart C—Specific Procedures
Applicable to PSD Permits
124.41 Definitions applicable to PSD permits.
124.42 Additional procedures for PSD permits affecting
Class I areas.
Subpart D—Specific Procedures
Applicable to NPDES Permits
124.51 Purpose and scope.
124.52 Permits required on a case-by-case basis.
124.53 State certification.
124.54 Special provisions for State certification and
concurrence on applications for section 301 (h)
variances.
124.55 Effect of State certification.
124.56 Fact sheets.
124.57 Public notice.
124.58 [Reserved]
124.59 Conditions requested by the Corps of Engineers
and other government agencies.
124.60 Issuance and effective date and stays of NPDES
permits.
124.61 Final environmental impact statement.
124.62 Decision on variances.
124.63 Procedures for variances when EPA is the per-
mitting authority.
124.64 Appeals of variances.
124.65 [Reserved]
124.66 Special procedures for decisions on thermal
variances under section 316(a).
Subpart E—Evidentiary Hearing for EPA-ls-
sued NPDES Permits and EPA-Termi-
nated RCRA Permits
124.71 Applicability.
124.72 Definitions.
124.73 Filing and submission of documents.
124.74 Requests for evidentiary hearing.
124.75 Decision on request for a hearing.
124.76 Obligation to submit evidence and raise issues
before a final permit is issued.
124.77 Notice of hearing.
124.78 Ex parte communications.
124.79 Additional parties and issues.
124.80 Filing and service.
124.81 Assignment of Administrative Law Judge.
124.82 Consolidation and severance.
124.83 Prehearing conferences.
124.84 Summary determination.
124.85 Hearing procedure.
124.86 Motions.
124.87 Record of hearings.
124.88 Proposed findings of fact and conclusions; brief.
124.89 Decisions.
124.90 Interlocutory appeal.
124.91 Appeal to the Administrator.
Subpart F—Non-Adversary Panel
Procedures
124.111 Applicability.
124.112 Relation to other subparts.
124.113 Public notice of draft permits and public com-
ment period.
124.114 Request for hearing.
124.115 Effect of denial of or absence of request for
hearing.
124.116 Notice of hearing.
124.117 Request to participate in hearing.
124.118 Submission of written comments on draft per-
mit.
124.119 Presiding Officer.
124.120 Panel hearing.
124.121 Opportunity for cross-examination.
124.122 Record for final permit.
124.123 Filing of brief, proposed findings of fact and
conclusions of law and proposed modified permit.
124.124 Recommended decision.
124.125 Appeal from or review of recommended deci-
sion.
124.126 Final decision.
124.127 Final decision if there is no review.
124.128 Delegation of authority; time limitations.
APPENDIX A TO PART 124—GUIDE TO DECISIONMAKING
UNDER PART 124
AUTHORITY: Resource Conservation and Recovery Act,
42 U.S.C. 6901 et seq.; Safe Drinking Water Act, 42
-------
§124.1
U.S.C. 300(f) et seq.; Clean Water Act, 33 U.S.C. 1251
et seq.; Clean Air Act, 42 U.S.C. 7401 et seq.
SOURCE: 48 FR 14264, Apr. 1, 1983, unless otherwise
noted.
Subpart A—General Program
Requirements
§ 124.1 Purpose and scope.
(a) This part contains EPA procedures for issu-
ing, modifying, revoking and reissuing, or termi-
nating all RCRA, UIC, PSD and NPDES "per-
mits" (including "sludge-only" permits issued
pursuant to § 122.1(b)(3)), other than RCRA and
UIC "emergency permits" (see §§270.61 and
144.34) and RCRA "permits by rule" (§270.60).
The latter kinds of permits are governed by part
270. RCRA interim status and UIC authorization
by rule are not "permits" and are covered by spe-
cific provisions in parts 144, subpart C, and 270.
This part also does not apply to permits issued,
modified, revoked and reissued or terminated by
the Corps of Engineers. Those procedures are
specified in 33 CFR parts 320-327. The proce-
dures of this part also apply to denial of a permit
for the active life of a RCRA hazardous waste
management facility or unit under §270.29.
(b) Part 124 is organized into six subparts. Sub-
part A contains general procedural requirements
applicable to all permit programs covered by these
HEARINGS AVAILABLE
regulations. Subparts B through F supplement
these general provisions with requirements that
apply to only one or more of the programs. Sub-
part A describes the steps EPA will follow in re-
ceiving permit applications, preparing draft per-
mits, issuing public notice, inviting public com-
ment and holding public hearings on draft permits.
Subpart A also covers assembling an administra-
tive record, responding to comments, issuing a
final permit decision, and allowing for administra-
tive appeal of the final permit decision. Subpart B
is reserved for specific procedural requirements for
RCRA permits. There are none of these at present
but they may be added in the future. Subpart C
contains definitions and specific procedural re-
quirements for PSD permits. Subpart D applies to
NPDES permits until an evidentiary hearing be-
gins, when subpart E procedures take over for
EPA-issued NPDES permits and EPA-terminated
RCRA permits. Subpart F, which is based on the
"initial licensing" provisions of the Administra-
tive Procedure Act (APA), can be used instead of
subparts A through E in appropriate cases.
(c) Part 124 offers an opportunity for three
kinds of hearings: A public hearing under subpart
A, an evidentiary hearing under subpart E, and a
panel hearing under subpart F. This chart describes
when these hearings are available for each of the
five permit programs.
UNDER THIS PART
Subpart
Programs
RCRA
UIC
PSD
NPDES (other
than general
permit).
(A)
Public hearing
On draft permit, at Director's
discretion or on request
(§124.12).
On draft permit, at Director's
discretion or on request
(§124.12).
On draft permit, at Director's
discretion or on request
(§124.12).
On draft permit, at Director's
discretion or on request
(§124.12).
(E)
Evidentiary hearing
(1) Permit termination (RCRA
section 3008).
(2) With NPDES evidentiary
hearing (§124.74(b)(2)).
With NPDES evidentiary hear-
ing (§124.74(b)(2)).
Not available (§ 124.71 (c))
(1) On request to challenge
any permit condition or vari-
ance (§124.74).
(2) At RA's discretion for any
301 (h) request (§124.64(b)).
(F)
Panel hearing
(1) At RA's discretion in lieu of public
hearing (§§124.12 and 124.111(a)(3)).
(2) When consolidated with NPDES draft
permit processed under Subpart F
(1) At RA's discretion in lieu of public
hearing (§§124.12 and 124.111(a)(3)).
(2) When consolidated with NPDES draft
permit processed under Subpart F
When consolidated with NPDES draft
permit processed under Subpart F if
RA determines that CAA one year
deadline will not be violated.
(1) At RA's discretion when first decision
on permit or variance request
(§124.111).
(2) At RA's discretion when request for
evidentiary hearing is granted under
§12475(a)(2) (§§124.74(c)(8) and
124.111(3) (2)).
(3) At RA's discretion for any 301 (h) re-
quest (§124.64(b)).
-------
§124.2
HEARINGS AVAILABLE UNDER THIS PART—Continued
Programs
NPDES (general
permit).
404
(A)
Public hearing
On draft permit, at Director's
discretion or on request
(§124.12).
tion when no draft permit, at
Director's discretion or on re-
quest (§124.12).
Subpart
(E)
Evidentiary hearing
Not available (§124.71 (a))
Not available (§12471)
(F)
Panel hearing
At RA's discretion in lieu of public hear-
ing (§124.111(a)(3)).
Not available (§124 111)
(d) This part is designed to allow permits for a
given facility under two or more of the listed pro-
grams to be processed separately or together at the
choice of the Regional Administrator. This allows
EPA to combine the processing of permits only
when appropriate, and not necessarily in all cases.
The Regional Administrator may consolidate per-
mit processing when the permit applications are
submitted, when draft permits are prepared, or
when final permit decisions are issued. This part
also allows consolidated permits to be subject to
a single public hearing under §124.12, a single
evidentiary hearing under § 124.75, or a single
non-adversary panel hearing under § 124.120. Per-
mit applicants may recommend whether or not
their applications should be consolidated in any
given case.
(e) Certain procedural requirements set forth in
part 124 must be adopted by States in order to
gain EPA approval to operate RCRA, UIC,
NPDES, and 404 permit programs. These require-
ments are listed in §§123.25 (NPDES), 145.11
(UIC), 233,26 (404), and 271.14 (RCRA) and sig-
naled by the following words at the end of the ap-
propriate part 124 section or paragraph heading:
(applicable to State programs see §§123.25
(NPDES), 145.11 (UIC), 233.26(404), and 271.14
(RCRA)). Part 124 does not apply to PSD permits
issued by an approved State.
(f) To coordinate decisionmaking when different
permits will be issued by EPA and approved State
programs, this part allows applications to be joint-
ly processed, joint comment periods and hearings
to be held, and final permits to be issued on a co-
operative basis whenever EPA and a State agree
to take such steps in general or in individual cases.
These joint processing agreements may be pro-
vided in the Memorandum of Agreement devel-
oped under §§ 123.24 (NPDES), 145.24 (UIC),
233.24 (404), and 271.8 (RCRA).
[48 FR 14264, Apr. 1, 1983, as amended at 54 FR 9607,
Mar. 7, 1989; 54 FR 18785, May 2, 1989]
§124.2 Definitions.
(a) In addition to the definitions given in
§§122.2 and 123.2 (NPDES), 501.2 (sludge man-
agement), 144.3 and 145.2 (UIC), 233.3 (404), and
270.2 and 271.2 (RCRA), the definitions below
apply to this part, except for PSD permits which
are governed by the definitions in § 124.41. Terms
not defined in this section have the meaning given
by the appropriate Act.
Administrator means the Administrator of the
U.S. Environmental Protection Agency, or an au-
thorized representative.
Applicable standards and limitations means all
State, interstate, and federal standards and limita-
tions to which a "discharge," a "sludge use or
disposal practice" or a related activity is subject
under the CWA, including "standards for sewage
sludge use or disposal," "effluent limitations,"
water quality standards, standards of performance,
toxic effluent standards or prohibitions, "best
management practices," and pretreatment stand-
ards under sections 301, 302, 303, 304, 306, 307,
308, 403, and 405 of CWA.
Application means the EPA standard national
forms for applying for a permit, including any ad-
ditions, revisions or modifications to the forms; or
forms approved by EPA for use in "approved
States," including any approved modifications or
revisions. For RCRA, application also includes the
information required by the Director under
§§270.14 through 270.29 [contents of Part B of
the RCRA application].
Appropriate Act and regulations means the
Clean Water Act (CWA); the Solid Waste Dis-
posal Act, as amended by the Resource Conserva-
tion Recovery Act (RCRA); or Safe Drinking
Water Act (SDWA), whichever is applicable; and
applicable regulations promulgated under those
statutes. In the case of an "approved State pro-
gram" appropriate Act and regulations includes
program requirements.
Consultation with the Regional Administrator
(§ 124.62(a)(2)) means review by the Regional Ad-
ministrator following evaluation by a panel of the
technical merits of all 301(k) applications ap-
-------
§124.2
proved by the Director. The panel (to be appointed
by the Director of the Office of Water Enforce-
ment and Permits) will consist of Headquarters,
Regional, and State personnel familiar with the in-
dustrial category in question.
CWA means the Clean Water Act (formerly re-
ferred to as the Federal Water Pollution Control
Act of Federal Pollution Control Act Amendments
of 1972) Public Law 92-500, as amended by Pub-
lic Law 95-217 and Public Law 95-576; 33
U.S.C. 1251 et seq.
Director means the Regional Administrator, the
State director or the Tribal director as the context
requires, or an authorized representative. When
there is no approved State or Tribal program, and
there is an EPA administered program, Director
means the Regional Administrator. When there is
an approved State or Tribal program, "Director"
normally means the State or Tribal director. In
some circumstances, however, EPA retains the au-
thority to take certain actions even when there is
an approved State or Tribal program. (For exam-
ple, when EPA has issued an NPDES permit prior
to the approval of a State program, EPA may re-
tain jurisdiction over that permit after program ap-
proval; see §123.1) In such cases, the term "Di-
rector" means the Regional Administrator and not
the State or Tribal director.
Draft permit means a document prepared under
§ 124.6 indicating the Director's tentative decision
to issue or deny, modify, revoke and reissue, ter-
minate, or reissue a "permit." A notice of intent
to terminate a permit and a notice of intent to
deny a permit as discussed in § 124.5, are types of
"draft permits." A denial of a request for modi-
fication, revocation and reissuance or termination,
as discussed in §124.5, is not a "draft permit."
A "proposal permit" is not a "draft permit."
Environmental Appeals Board shall mean the
Board within the Agency described in § 1.25(e) of
this title. The Administrator delegates authority to
the Environmental Appeals Board to issue final
decisions in RCRA, PSD, UIC, or NPDES permit
appeals filed under this subpart, including informal
appeals of denials of requests for modification,
revocation and reissuance, or termination of per-
mits under Section 124.5(b). An appeal directed to
the Administrator, rather than to the Environ-
mental Appeals Board, will not be considered.
This delegation does not preclude the Environ-
mental Appeals Board from referring an appeal or
a motion under this subpart to the Administrator
when the Environmental Appeals Board, in its dis-
cretion, deems it appropriate to do so. When an
appeal or motion is referred to the Administrator
by the Environmental Appeals Board, all parties
shall be so notified and the rules in this subpart
referring to the Environmental Appeals Board
shall be interpreted as referring to the Adminis-
trator.
EPA ("EPA") means the United States "Envi-
ronmental Protection Agency."
Facility or activity means any "HWM facility,"
UIC "injection well," NPDES "point source" or
"treatment works treating domestic sewage" or
State 404 dredge or fill activity, or any other facil-
ity or activity (including land or appurtenances
thereto) that is subject to regulation under the
RCRA, UIC, NPDES, or 404 programs.
Federal Indian reservation (in the case of
NPDES) means all land within the limits of any
Indian reservation under the jurisdiction of the
United States Government, notwithstanding the is-
suance of any patent, and including rights-of-way
running through the reservation.
General permit (NPDES and 404) means an
NPDES or 404 "permit" authorizing a category
of discharges or activities under the CWA within
a geographical area. For NPDES, a general permit
means a permit issued under § 122.28. For 404, a
general permit means a permit issued under
§233.37.
Indian Tribe means (in the case of UIC) any In-
dian Tribe having a federally recognized govern-
ing body carrying out substantial governmental du-
ties and powers over a defined area. For the
NPDES program, the term "Indian Tribe" means
any Indian Tribe, band, group, or community rec-
ognized by the Secretary of the Interior and exer-
cising governmental authority over a Federal In-
dian reservation.
Interstate agency means an agency of two or
more States established by or under an agreement
or compact approved by the Congress, or any
other agency of two or more States having sub-
stantial powers or duties pertaining to the control
of pollution as determined and approved by the
Administrator under the "appropriate Act and reg-
ulations."
Major facility means any RCRA, UIC, NPDES,
or 404 "facility or activity" classified as such by
the Regional Administrator, or, in the case of "ap-
proved State programs," the Regional Adminis-
trator in conjunction with the State Director.
NPDES means National Pollutant Discharge
Elimination System.
Owner or operator means owner or operator of
any "facility or activity" subject to regulation
under the RCRA, UIC, NPDES, or 404 programs.
Permit means an authorization, license, or
equivalent control document issued by EPA or an
"approved State" to implement the requirements
of this part and parts 122, 123, 144, 145, 233,
270, and 271. "Permit" includes RCRA "permit
by rule" (§270.60), UIC area permit (§144.33),
NPDES or 404 "general permit" (§§270.61,
144.34, and 233.38). Permit does not include
-------
§124.3
RCRA interim status (§270.70), UIC authorization
by rule (§144.21), or any permit which has not
yet been the subject of final agency action, such
as a "draft permit" or a "proposed permit."
Person means an individual, association, part-
nership, corporation, municipality, State, Federal,
or Tribal agency, or an agency or employee there-
of.
RCRA means the Solid Waste Disposal Act as
amended by the Resource Conservation and Re-
covery Act of 1976 (Pub. L. 94-580, as amended
by Pub. L. 95-609, 42 U.S.C. 6901 et seq).
Regional Administrator means the Regional Ad-
ministrator of the appropriate Regional Office of
the Environmental Protection Agency or the au-
thorized representative of the Regional Adminis-
trator.
Schedule of compliance means a schedule of re-
medial measures included in a "permit," includ-
ing an enforceable sequence of interim require-
ments (for example, actions, operations, or mile-
stone events) leading to compliance with the "ap-
propriate Act and regulations."
SDWA means the Safe Drinking Water Act
(Pub. L. 95-523, as amended by Pub. L. 95-1900;
42 U.S.C. 300f et seq).
Section 404 program or State 404 program or
404 means an "approved State program" to regu-
late the "discharge of dredged material" and the
"discharge of fill material" under section 404 of
the Clean Water Act in "State regulated waters."
Site means the land or water area where any
"facility or activity" is physically located or con-
ducted, including adjacent land used in connection
with the facility or activity.
State means one of the States of the United
States, the District of Columbia, the Common-
wealth of Puerto Rico, the Virgin Islands, Guam,
American Samoa, the Trust Territory of the Pacific
Islands (except in the case of RCRA), the Com-
monwealth of the Northern Mariana Islands, or an
Indian Tribe that meets the statutory criteria which
authorize EPA to treat the Tribe in a manner simi-
lar to that in which it treats a State (except in the
case of RCRA).
State Director means the chief administrative
officer of any State, interstate, or Tribal agency
operating an approved program, or the delegated
representative of the State director. If the respon-
sibility is divided among two or more States, inter-
state, or Tribal agencies, "State Director" means
the chief administrative officer of the State, inter-
state, or Tribal agency authorized to perform the
particular procedure or function to which reference
is made.
State Director means the chief administrative
officer of any State or interstate agency operating
an "approved program," or the delegated rep-
resentative of the state Director. If responsibility is
divided among two or more State or interstate
agencies, "State Director" means the chief admin-
istrative officer of the State or interstate agency
authorized to perform the particular procedure or
function to which reference is made.
UIC means the Underground Injection Control
program under Part C of the Safe Drinking Water
Act, including an "approved program."
Variance (NPDES) means any mechanism or
provision under section 301 or 316 of CWA or
under 40 CFR part 125, or in the applicable "ef-
fluent limitations guidelines" which allows modi-
fication to or waiver of the generally applicable
effluent limitation requirements or time deadlines
of CWA. This includes provisions which allow the
establishment of alternative limitations based on
fundamentally different factors or on sections
301(c), 301(g), 301(h), 301(i), or 316(a) of CWA.
(b) For the purposes of part 124, the term Di-
rector means the State Director or Regional Ad-
ministrator and is used when the accompanying
provision is required of EPA-administered pro-
grams and of State programs under §§ 123.25
(NPDES), 145.11 (UIC), 233.26 (404), and 271.14
(RCRA). The term Regional Administrator is used
when the accompanying provision applies exclu-
sively to EPA-issued permits and is not applicable
to State programs under these sections. While
States are not required to implement these latter
provisions, they are not precluded from doing so,
notwithstanding use of the term "Regional Ad-
ministrator. ''
(c) The term formal hearing means any evi-
dentiary hearing under subpart E or any panel
hearing under subpart F but does not mean a pub-
lic hearing conducted under § 124.12.
[48 FR 14264, Apr. 1, 1983; 48 FR 30115, June 30,
1983, as amended at 49 FR 25981, June 25, 1984; 53 FR
37410, Sept. 26, 1988; 54 FR 18785, May 2, 1989; 57
FR 5335, Feb. 13, 1992; 57 FR 60129, Dec. 18, 1992;
58 FR 67983, Dec. 22, 1993; 59 FR 64343, Dec. 14,
1994]
§ 124.3 Application for a permit.
(a) Applicable to State programs, see §§123.25
(NPDES), 145.11 (UIC), 233.26(404), and 271.14
(RCRA). (1) Any person who requires a permit
under the RCRA, UIC, NPDES, or PSD programs
shall complete, sign, and submit to the Director an
application for each permit required under
§§270.1 (RCRA), 144.1 (UIC), 40 CFR 52.21
(PSD), and 122.1 (NPDES). Applications are not
required for RCRA permits by rule (§ 270.60), un-
derground injections authorized by rules
(§§144.21 through 144.26), NPDES general per-
mits (§ 122.28) and 404 general permits
(§233.37).
(2) The Director shall not begin the processing
of a permit until the applicant has fully complied
-------
§124.4
with the application requirements for that permit.
See §§270.10, 270.13 (RCRA), 144.31 (UIC), 40
CFR 52.21 (PSD), and 122.21 (NPDES).
(3) Permit applications (except for PSD permits)
must comply with the signature and certification
requirements of §§122.22 (NPDES), 144.32
(UIC), 233.6 (404), and 270.11 (RCRA).
(b) [Reserved]
(c) The Regional Administrator shall review for
completeness every application for an EPA-issued
permit. Each application for an EPA-issued permit
submitted by a new HWM facility, a new UIC in-
jection well, a major PSD stationary source or
major PSD modification, or an NPDES new
source or NPDES new discharger should be re-
viewed for completeness by the Regional Admin-
istrator within 30 days of its receipt. Each applica-
tion for an EPA-issued permit submitted by an ex-
isting HWM facility (both Parts A and B of the
application), existing injection well or existing
NPDES source or sludge-only facility should be
reviewed for completeness within 60 days of re-
ceipt. Upon completing the review, the Regional
Administrator shall notify the applicant in writing
whether the application is complete. If the applica-
tion is incomplete, the Regional Administrator
shall list the information necessary to make the
application complete. When the application is for
an existing HWM facility, an existing UIC injec-
tion well or an existing NPDES source or
"sludge-only facility" the Regional Administrator
shall specify in the notice of deficiency a date for
submitting the necessary information. The Re-
gional Administrator shall notify the applicant that
the application is complete upon receiving this in-
formation. After the application is completed, the
Regional Administrator may request additional in-
formation from an applicant but only when nec-
essary to clarify, modify, or supplement previously
submitted material. Requests for such additional
information will not render an application incom-
plete.
(d) If an applicant fails or refuses to correct de-
ficiencies in the application, the permit may be de-
nied and appropriate enforcement actions may be
taken under the applicable statutory provision in-
cluding RCRA section 3008, SDWA sections 1423
and 1424, CAA section 167, and CWA sections
308, 309, 402(h), and 402(k).
(e) If the Regional Administrator decides that a
site visit is necessary for any reason in conjunc-
tion with the processing of an application, he or
she shall notify the applicant and a date shall be
scheduled.
(f) The effective date of an application is the
date on which the Regional Administrator notifies
the applicant that the application is complete as
provided in paragraph (c) of this section.
(g) For each application from a major new
HWM facility, major new UIC injection well,
major NPDES new source, major NPDES new dis-
charger, or a permit to be issued under provisions
of § 122.28(c), the Regional Administrator shall,
no later than the effective date of the application,
prepare and mail to the applicant a project deci-
sion schedule. (This paragraph does not apply to
PSD permits.) The schedule shall specify target
dates by which the Regional Administrator intends
to:
(1) Prepare a draft permit;
(2) Give public notice;
(3) Complete the public comment period, in-
cluding any public hearing;
(4) Issue a final permit; and
(5) In the case of an NPDES permit, complete
any formal proceedings under subpart E or F.
(Clean Water Act (33 U.S.C. 1251 et seq.\ Safe Drinking
Water Act (42 U.S.C. 300f et seq.\ Clean Air Act (42
U.S.C. 7401 et seq.\ Resource Conservation and Recov-
ery Act (42 U.S.C. 6901 et seq.'f)
[48 FR 14264, Apr. 1, 1983, as amended at 48 FR 39620,
Sept. 1, 1983; 54 FR 18785, May 2, 1989]
§124.4 Consolidation of permit proc-
essing.
(a)(l) Whenever a facility or activity requires a
permit under more than one statute covered by
these regulations, processing of two or more appli-
cations for those permits may be consolidated. The
first step in consolidation is to prepare each draft
permit at the same time.
(2) Whenever draft permits are prepared at the
same time, the statements of basis (required under
§ 124.7 for EPA-issued permits only) or fact sheets
(§124.8), administrative records (required under
§ 124.9 for EPA-issued permits only), public com-
ment periods (§124.10), and any public hearings
(§ 124.12) on those permits should also be consoli-
dated. The final permits may be issued together.
They need not be issued together if in the judg-
ment of the Regional Administrator or State
Director(s), joint processing would result in unrea-
sonable delay in the issuance of one or more per-
mits.
(b) Whenever an existing facility or activity re-
quires additional permits under one or more of the
statutes covered by these regulations, the permit-
ting authority may coordinate the expiration
date(s) of the new permit(s) with the expiration
date(s) of the existing permit(s) so that all permits
expire simultaneously. Processing of the subse-
quent applications for renewal permits may then
be consolidated.
(c) Processing of permit applications under
paragraph (a) or (b) of this section may be con-
solidated as follows:
-------
§124.5
(1) The Director may consolidate permit proc-
essing at his or her discretion whenever a facility
or activity requires all permits either from EPA or
from an approved State.
(2) The Regional Administrator and the State
Director(s) may agree to consolidate draft permits
whenever a facility or activity requires permits
from both EPA and an approved State.
(3) Permit applicants may recommend whether
or not the processing of their applications should
be consolidated.
(d) Whenever permit processing is consolidated
and the Regional Administrator invokes the "ini-
tial licensing" provisions of subpart F for an
NPDES, RCRA, or UIC permit, any permit(s) with
which that NPDES, RCRA or UIC permit was
consolidated shall likewise be processed under
subpart F.
(e) Except with the written consent of the per-
mit applicant, the Regional Administrator shall not
consolidate processing a PSD permit with any
other permit under paragraph (a) or (b) of this sec-
tion or process a PSD permit under subpart F as
provided in paragraph (d) of this section when to
do so would delay issuance of the PSD permit
more than one year from the effective date of the
application under § 124.3(f).
§124.5 Modification, revocation and
reissuance, or termination of per-
mits.
(a) (Applicable to State programs, see §§123.25
(NPDES), 145.11 (UIC), 233.26(404), and 271.14
(RCRA)). Permits (other than PSD permits) may
be modified, revoked and reissued, or terminated
either at the request of any interested person (in-
cluding the permittee) or upon the Director's ini-
tiative. However, permits may only be modified,
revoked and reissued, or terminated for the reasons
specified in § 122.62 or § 122.64 (NPDES), 144.39
or 144.40 (UIC), 233.14 or 233.15 (404), and
270.41 or 270.43 (RCRA). All requests shall be in
writing and shall contain facts or reasons support-
ing the request.
(b) If the Director decides the request is not jus-
tified, he or she shall send the requester a brief
written response giving a reason for the decision.
Denials of requests for modification, revocation
and reissuance, or termination are not subject to
public notice, comment, or hearings. Denials by
the Regional Administrator may be informally ap-
pealed to the Environmental Appeals Board by a
letter briefly setting forth the relevant facts. The
Environmental Appeals Board may direct the Re-
gional Administrator to begin modification, rev-
ocation and reissuance, or termination proceedings
under paragraph (c) of this section. The appeal
shall be considered denied if the Environmental
Appeals Board takes no action on the letter within
60 days after receiving it. This informal appeal is,
under 5 U.S.C. 704, a prerequisite to seeking judi-
cial review of EPA action in denying a request for
modification, revocation and reissuance, or termi-
nation.
(c) (Applicable to State programs, see §§123.25
(NPDES), 145.11 (UIC), 233.26(404), and 271.14
(RCRA)). (1) If the Director tentatively decides to
modify or revoke and reissue a permit under
§§122.62 (NPDES), 144.39 (UIC), 233.14 (404),
or 270.41 or 270.42(c) (RCRA), he or she shall
prepare a draft permit under § 124.6 incorporating
the proposed changes. The Director may request
additional information and, in the case of a modi-
fied permit, may require the submission of an up-
dated application. In the case of revoked and re-
issued permits, the Director shall require the sub-
mission of a new application.
(2) In a permit modification under this section,
only those conditions to be modified shall be re-
opened when a new draft permit is prepared. All
other aspects of the existing permit shall remain in
effect for the duration of the unmodified permit.
When a permit is revoked and reissued under this
section, the entire permit is reopened just as if the
permit had expired and was being reissued. During
any revocation and reissuance proceeding the per-
mittee shall comply with all conditions of the ex-
isting permit until a new final permit is reissued.
(3) "Minor modifications" as defined in
§§122.63 (NPDES), 144.41 (UIC), and 233.16
(404), and "Classes 1 and 2 modifications" as de-
fined in § 270.42 (a) and (b) (RCRA) are not sub-
ject to the requirements of this section.
(d) (Applicable to State programs, see §§123.25
(NPDES), 145.11 (UIC), 233.26(404), and 271.14
(RCRA)). If the Director tentatively decides to ter-
minate a permit under §§ 122.64 (NDPES), 144.40
(UIC), 233.15 (404), or 270.43 (RCRA), he or she
shall issue a notice of intent to terminate. A notice
of intent to terminate is a type of draft permit
which follows the same procedures as any draft
permit prepared under § 124.6. In the case of
EPA-issued permits, a notice of intent to terminate
shall not be issued if the Regional Administrator
and the permittee agree to termination in the
course of transferring permit responsibility to an
approved State under §§ 123.24(b)(l) (NPDES),
145.24(b)(l) (UIC), 271.8(b)(6) (RCRA), or
501.14(b)(l) (Sludge).
(e) When EPA is the permitting authority, all
draft permits (including notices of intent to termi-
nate) prepared under this section shall be based on
the administrative record as defined in § 124.9.
(f) (Applicable to State programs, see §233.26
(404)). Any request by the permittee for modifica-
tion to an existing 404 permit (other than a request
for a minor modification as defined in §233.16
(404)) shall be treated as a permit application and
-------
§124.6
shall be processed in accordance with all require-
ments of § 124.3.
(g)(l) (Reserved for PSD Modification Provi-
sions).
(2) PSD permits may be terminated only by re-
scission under §52.21(w) or by automatic expira-
tion under §52.21(r). Applications for rescission
shall be precessed under §52.21(w) and are not
subject to this part.
[48 FR 14264, Apr. 1, 1983, as amended at 53 FR 37934,
Sept. 28, 1988; 54 FR 18785, May 2, 1989; 57 FR 60129,
Dec. 18, 1992]
§124.6 Draft permits.
(a) (Applicable to State programs, see §§123.25
(NPDES), 145.11 (UIC), 233.26(404), and 271.14
(RCRA).) Once an application is complete, the Di-
rector shall tentatively decide whether to prepare
a draft permit (except in the case of State section
404 permits for which no draft permit is required
under §233.39) or to deny the application.
(b) If the Director tentatively decides to deny
the permit application, he or she shall issue a no-
tice of intent to deny. A notice of intent to deny
the permit application is a type of draft permit
which follows the same procedures as any draft
permit prepared under this section. See § 124.6(e).
If the Director's final decision (§124.15) is that
the tentative decision to deny the permit applica-
tion was incorrect, he or she shall withdraw the
notice of intent to deny and proceed to prepare a
draft permit under paragraph (d) of this section.
(c) (Applicable to State programs, see §§123.25
(NPDES) and 233.26 (404).) If the Director ten-
tatively decides to issue an NPDES or 404 general
permit, he or she shall prepare a draft general per-
mit under paragraph (d) of this section.
(d) (Applicable to State programs, see §§123.25
(NPDES), 145.11 (UIC), 233.26(404), and 271.14
(RCRA).) If the Director decides to prepare a draft
permit, he or she shall prepare a draft permit that
contains the following information:
(1) All conditions under §§122.41 and 122.43
(NPDES), 144.51 and 144.42 (UIC, 233.7 and
233.8 (404, or 270.30 and 270.32 (RCRA) (except
for PSD permits)));
(2) All compliance schedules under §§ 122.47
(NPDES), 144.53 (UIC), 233.10 (404), or 270.33
(RCRA) (except for PSD permits);
(3) All monitoring requirements under §§ 122.48
(NPDES), 144.54 (UIC), 233.11 (404), or 270.31
(RCRA) (except for PSD permits); and
(4) For:
(i) RCRA permits, standards for treatment, stor-
age, and/or disposal and other permit conditions
under §270.30;
(ii) UIC permits, permit conditions under
§144.52;
(iii) PSD permits, permit conditions under 40
CFR §52.21;
(iv) 404 permits, permit conditions under
§§233.7 and 233.8;
(v) NPDES permits, effluent limitations, stand-
ards, prohibitions, standards for sewage sludge use
or disposal, and conditions under §§ 122.41,
122.42, and 122.44, including when applicable any
conditions certified by a State agency under
§ 124.55, and all variances that are to be included
under § 124.63.
(e) (Applicable to State programs, see §§123.25
(NPDES), 145.11 (UIC), 233.26(404), and 271.14
(RCRA).) All draft permits prepared by EPA under
this section shall be accompanied by a statement
of basis (§ 124.7) or fact sheet (§ 124.8), and shall
be based on the administrative record (§ 124.9),
publicly noticed (§ 124.10) and made available for
public comment (§124.11). The Regional Admin-
istrator shall give notice of opportunity for a pub-
lic hearing (§124.12), issue a final decision
(§124.15) and respond to comments (§124.17).
For RCRA, UIC or PSD permits, an appeal may
be taken under § 124.19 and, for NPDES permits,
an appeal may be taken under § 124.74. Draft per-
mits prepared by a State shall be accompanied by
a fact sheet if required under § 124.8.
[48 FR 14264, Apr. 1, 1983, as amended at 54 FR 18785,
May 2, 1989]
§124.7 Statement of basis.
EPA shall prepare a statement of basis for every
draft permit for which a fact sheet under § 124.8
is not prepared. The statement of basis shall brief-
ly describe the derivation of the conditions of the
draft permit and the reasons for them or, in the
case of notices of intent to deny or terminate, rea-
sons supporting the tentative decision. The state-
ment of basis shall be sent to the applicant and,
on request, to any other person.
§124.8 Fact sheet.
(Applicable to State programs, see §§123.25
(NPDES), 145.11 (UIC), 233.26(404), and 271.14
(RCRA).)
(a) A fact sheet shall be prepared for every draft
permit for a major HWM, UIC, 404, or NPDES
facility or activity, for every Class I sludge man-
agement facility, for every 404 and NPDES gen-
eral permit (§§237.37 and 122.28), for every
NPDES draft permit that incorporates a variance
or requires an explanation under §124.56(b), for
every draft permit that includes a sewage sludge
land application plan under 40 CFR
501.15(a)(2)(ix), and for every draft permit which
the Director finds is the subject of wide-spread
-------
§124.10
public interest or raises major issues. The fact
sheet shall briefly set forth the principal facts and
the significant factual, legal, methodological and
policy questions considered in preparing the draft
permit. The Director shall send this fact sheet to
the applicant and, on request, to any other person.
(b) The fact sheet shall include, when applica-
ble:
(1) A brief description of the type of facility or
activity which is the subject of the draft permit;
(2) The type and quantity of wastes, fluids, or
pollutants which are proposed to be or are being
treated, stored, disposed of, injected, emitted, or
discharged.
(3) For a PSD permit, the degree of increment
consumption expected to result from operation of
the facility or activity.
(4) A brief summary of the basis for the draft
permit conditions including references to applica-
ble statutory or regulatory provisions and appro-
priate supporting references to the administrative
record required by § 124.9 (for EPA-issued per-
mits);
(5) Reasons why any requested variances or al-
ternatives to required standards do or do not ap-
pear justified;
(6) A description of the procedures for reaching
a final decision on the draft permit including:
(i) The beginning and ending dates of the com-
ment period under § 124.10 and the address where
comments will be received;
(ii) Procedures for requesting a hearing and the
nature of that hearing; and
(iii) Any other procedures by which the public
may participate in the final decision.
(7) Name and telephone number of a person to
contact for additional information.
(8) For NPDES permits, provisions satisfying
the requirements of § 124.56.
[48 FR 14264, Apr. 1, 1983, as amended at 54 FR 18786,
May 2, 1989]
§124.9 Administrative record for draft
permits when EPA is the permitting
authority.
(a) The provisions of a draft permit prepared by
EPA under § 124.6 shall be based on the adminis-
trative record defined in this section.
(b) For preparing a draft permit under § 124.6,
the record shall consist of:
(1) The application, if required, and any sup-
porting data furnished by the applicant;
(2) The draft permit or notice of intent to deny
the application or to terminate the permit;
(3) The statement of basis (§ 124.7) or fact sheet
(§124.8);
(4) All documents cited in the statement of
basis or fact sheet; and
(5) Other documents contained in the supporting
file for the draft permit.
(6) For NPDES new source draft permits only,
any environmental assessment, environmental im-
pact statement (EIS), finding of no significant im-
pact, or environmental information document and
any supplement to an EIS that may have been pre-
pared. NPDES permits other than permits to new
sources as well as all RCRA, UIC and PSD per-
mits are not subject to the environmental impact
statement provisions of section 102(2)(C) of the
National Environmental Policy Act, 42 U.S.C.
4321.
(c) Material readily available at the issuing Re-
gional Office or published material that is gen-
erally available, and that is included in the admin-
istrative record under paragraphs (b) and (c) of
this section, need not be physically included with
the rest of the record as long as it is specifically
referred to in the statement of basis or the fact
sheet.
(d) This section applies to all draft permits
when public notice was given after the effective
date of these regulations.
§ 124.10 Public notice of permit actions
and public comment period.
(a) Scope. (1) The Director shall give public no-
tice that the following actions have occurred:
(i) A permit application has been tentatively de-
nied under § 124.6(b);
(ii) (Applicable to State programs, see §§123.25
(NPDES), 145.11 (UIC), 233.26(404), and 271.14
(RCRA)). A draft permit has been prepared under
§ 124.6(d);
(iii) (Applicable to State programs, see
§§123.25 (NPDES), 145.11 (UIC), 233.26 (404)
and 271.14 (RCRA)). A hearing has been sched-
uled under § 124.12, subpart E or subpart F;
(iv) An appeal has been granted under
§124.19(c);
(v) (Applicable to State programs, see §233.26
(404)). A State section 404 application has been
received in cases when no draft permit will be
prepared (see §233.39); or
(vi) An NPDES new source determination has
been made under § 122.29.
(2) No public notice is required when a request
for permit modification, revocation and reissuance,
or termination is denied under § 124.5(b). Written
notice of that denial shall be given to the requester
and to the permittee.
(3) Public notices may describe more than one
permit or permit actions.
(b) Timing (applicable to State programs, see
§§123.25 (NPDES), 145.11 (UIC), 233.26 (404,
and 271.14 (RCRA)). (1) Public notice of the prep-
aration of a draft permit (including a notice of in-
tent to deny a permit application) required under
-------
§124.10
paragraph (a) of this section shall allow at least 30
days for public comment. For RCRA permits only,
public notice shall allow at least 45 days for pub-
lic comment. For EPA-issued permits, if the Re-
gional Administrator determines under 40 CFR
part 6, subpart F that an Environmental Impact
Statement (EIS) shall be prepared for an NPDES
new source, public notice of the draft permit shall
not be given until after a draft EIS is issued.
(2) Public notice of a public hearing shall be
given at least 30 days before the hearing. (Public
notice of the hearing may be given at the same
time as public notice of the draft permit and the
two notices may be combined.)
(c) Methods (applicable to State programs, see
§§123.25 (NPDES), 145.11 (UIC), 233.26 (404),
and 271.14 (RCRA)). Public notice of activities
described in paragraph (a)(l) of this section shall
be given by the following methods:
(1) By mailing a copy of a notice to the follow-
ing persons (any person otherwise entitled to re-
ceive notice under this paragraph may waive his
or her rights to receive notice for any classes and
categories of permits);
(i) The applicant (except for NPDES and 404
general permits when there is no applicant);
(ii) Any other agency which the Director knows
has issued or is required to issue a RCRA, UIC,
PSD (or other permit under the Clean Air Act),
NPDES, 404, sludge management permit, or ocean
dumping permit under the Marine Research Pro-
tection and Sanctuaries Act for the same facility or
activity (including EPA when the draft permit is
prepared by the State);
(iii) Federal and State agencies with jurisdiction
over fish, shellfish, and wildlife resources and
over coastal zone management plans, the Advisory
Council on Historic Preservation, State Historic
Preservation Officers, including any affected States
(Indian Tribes). (For purposes of this paragraph,
and in the context of the Underground Injection
Control Program only, the term State includes In-
dian Tribes treated as States.)
(iv) For NPDES and 404 permits only, any
State agency responsible for plan development
under CWA section 208(b)(2), 208(b)(4) or 303(e)
and the U.S. Army Corps of Engineers, the U.S.
Fish and Wildlife Service and the National Marine
Fisheries Service;
(v) For NPDES permits only, any user identified
in the permit application of a privately owned
treatment works;
(vi) For 404 permits only, any reasonably ascer-
tainable owner of property adjacent to the regu-
lated facility or activity and the Regional Director
of the Federal Aviation Administration if the dis-
charge involves the construction of structures
which may affect aircraft operations or for pur-
poses associated with seaplane operations;
(vii) For PSD permits only, affected State and
local air pollution control agencies, the chief ex-
ecutives of the city and county where the major
stationary source or major modification would be
located, any comprehensive regional land use plan-
ning agency and any State, Federal Land Manager,
or Indian Governing Body whose lands may be af-
fected by emissions from the regulated activity;
(viii) For Class I injection well UIC permits
only, state and local oil and gas regulatory agen-
cies and state agencies regulating mineral explo-
ration and recovery;
(ix) Persons on a mailing list developed by:
(A) Including those who request in writing to be
on the list;
(B) Soliciting persons for "area lists" from par-
ticipants in past permit proceedings in that area;
and
(C) Notifying the public of the opportunity to
be put on the mailing list through periodic publi-
cation in the public press and in such publications
as Regional and State funded newsletters, environ-
mental bulletins, or State law journals. (The Direc-
tor may update the mailing list from time to time
by requesting written indication of continued inter-
est from those listed. The Director may delete
from the list the name of any person who fails to
respond to such a request.)
(x)(A) To any unit of local government having
jurisdiction over the area where the facility is pro-
posed to be located; and (B) to each State agency
having any authority under State law with respect
to the construction or operation of such facility.
(2)(i) For major permits, NPDES and 404 gen-
eral permits, and permits that include sewage
sludge land application plans under 40 CFR
501.15(a)(2)(ix), publication of a notice in a daily
or weekly newspaper within the area affected by
the facility or activity; and for EPA-issued NPDES
general permits, in the FEDERAL REGISTER;
NOTE: The Director is encouraged to provide as much
notice as possible of the NPDES or Section 404 draft
general permit to the facilities or activities to be covered
by the general permit.
(ii) For all RCRA permits, publication of a no-
tice in a daily or weekly major local newspaper of
general circulation and broadcast over local radio
stations.
(3) When the program is being administered by
an approved State, in a manner constituting legal
notice to the public under State law; and
(4) Any other method reasonably calculated to
give actual notice of the action in question to the
persons potentially affected by it, including press
releases or any other forum or medium to elicit
public participation.
(d) Contents (applicable to State programs, see
§§123.25 (NPDES), 145.11 (UIC), 233.26 (404),
and 271.14 (RCRA))—(I) All public notices. All
10
-------
§124.11
public notices issued under this part shall contain
the following minimum information:
(i) Name and address of the office processing
the permit action for which notice is being given;
(ii) Name and address of the permittee or permit
applicant and, if different, of the facility or activ-
ity regulated by the permit, except in the case of
NPDES and 404 draft general permits under
§§ 122.28 and 233.37;
(iii) A brief description of the business con-
ducted at the facility or activity described in the
permit application or the draft permit, for NPDES
or 404 general permits when there is no applica-
tion.
(iv) Name, address and telephone number of a
person from whom interested persons may obtain
further information, including copies of the draft
permit or draft general permit, as the case may be,
statement of basis or fact sheet, and the applica-
tion; and
(v) A brief description of the comment proce-
dures required by §§124.11 and 124.12 and the
time and place of any hearing that will be held,
including a statement of procedures to request a
hearing (unless a hearing has already been sched-
uled) and other procedures by which the public
may participate in the final permit decision.
(vi) For EPA-issued permits, the location of the
administrative record required by § 124.9, the
times at which the record will be open for public
inspection, and a statement that all data submitted
by the applicant is available as part of the admin-
istrative record.
(vii) For NPDES permits only (including those
for "sludge-only facilities"), a general description
of the location of each existing or proposed dis-
charge point and the name of the receiving water
and the sludge use and disposal practice(s) and the
location of each sludge treatment works treating
domestic sewage and use or disposal sites known
at the time of permit application. For draft general
permits, this requirement will be satisfied by a
map or description of the permit area. For draft
general permits, this requirement will be satisfied
by a map or description of the permit area. For
EPA-issued NPDES permits only, if the discharge
is from a new source, a statement as to whether
an environmental impact statement will be or has
been prepared.
(viii) For 404 permits only,
(A) The purpose of the proposed activity (in-
cluding, in the case of fill material, activities in-
tended to be conducted on the fill), a description
of the type, composition, and quantity of materials
to be discharged and means of conveyance; and
any proposed conditions and limitations on the
discharge;
(B) The name and water quality standards clas-
sification, if applicable, of the receiving waters
into which the discharge is proposed, and a gen-
eral description of the site of each proposed dis-
charge and the portions of the site and the dis-
charges which are within State regulated waters;
(C) A description of the anticipated environ-
mental effects of activities conducted under the
permit;
(D) References to applicable statutory or regu-
latory authority; and
(E) Any other available information which may
assist the public in evaluating the likely impact of
the proposed activity upon the integrity of the re-
ceiving water.
(ix) Any additional information considered nec-
essary or proper.
(2) Public notices for hearings. In addition to
the general public notice described in paragraph
(d)(l) of this section, the public notice of a hear-
ing under §124.12, subpart E, or subpart F shall
contain the following information:
(i) Reference to the date of previous public no-
tices relating to the permit;
(ii) Date, time, and place of the hearing;
(iii) A brief description of the nature and pur-
pose of the hearing, including the applicable rules
and procedures; and
(iv) For 404 permits only, a summary of major
issues raised to date during the public comment
period.
(e) (Applicable to State programs, see §§123.25
(NPDES), 145.11 (UIC), 233.26(404), and 271.14
(RCRA)). In addition to the general public notice
described in paragraph (d)(l) of this section, all
persons identified in paragraphs (c)(l) (i), (ii),
(iii), and (iv) of this section shall be mailed a copy
of the fact sheet or statement of basis (for EPA-
issued permits), the permit application (if any) and
the draft permit (if any).
[48 FR 14264, Apr. 1, 1983; 48 FR 30115, June 30,
1983, as amended at 53 FR 28147, July 26, 1988; 53 FR
37410, Sept. 26, 1988; 54 FR 258, Jan. 4, 1989; 54 FR
18786, May 2, 1989]
§124.11 Public comments and requests
for public hearings.
(Applicable to State programs, see §§123.25
(NPDES), 145.11 (UIC), 233.26(404), and 271.14
(RCRA)). During the public comment period pro-
vided under §124.10, any interested person may
submit written comments on the draft permit or
the permit application for 404 permits when no
draft permit is required (see §233.39) and may re-
quest a public hearing, if no hearing has already
been scheduled. A request for a public hearing
shall be in writing and shall state the nature of the
issues proposed to be raised in the hearing. All
comments shall be considered in making the final
decision and shall be answered as provided in
§124.17.
11
-------
§124.12
§124.12 Public hearings.
(a) (Applicable to State programs, see §§123.25
(NPDES), 145.11 (UIC), 233.26(404), and 271.14
(RCRA).) (1) The Director shall hold a public
hearing whenever he or she finds, on the basis of
requests, a significant degree of public interest in
a draft permit(s);
(2) The Director may also hold a public hearing
at his or her discretion, whenever, for instance,
such a hearing might clarify one or more issues
involved in the permit decision;
(3) For RCRA permits only, (i) the Director
shall hold a public hearing whenever he or she re-
ceives written notice of opposition to a draft per-
mit and a request for a hearing within 45 days of
public notice under § 124.10(b)(l); (ii) whenever
possible the Director shall schedule a hearing
under this section at a location convenient to the
nearest population center to the proposed facility;
(4) Public notice of the hearing shall be given
as specified in § 124.10.
(b) Whenever a public hearing will be held and
EPA is the permitting authority, the Regional Ad-
ministrator shall designate a Presiding Officer for
the hearing who shall be responsible for its sched-
uling and orderly conduct.
(c) Any person may submit oral or written state-
ments and data concerning the draft permit. Rea-
sonable limits may be set upon the time allowed
for oral statements, and the submission of state-
ments in writing may be required. The public
comment period under § 124.10 shall automatically
be extended to the close of any public hearing
under this section. The hearing officer may also
extend the comment period by so stating at the
hearing.
(d) A tape recording or written transcript of the
hearing shall be made available to the public.
(e)(l) At his or her discretion, the Regional Ad-
ministrator may specify that RCRA or UIC per-
mits be processed under the procedures in subpart
F.
(2) For initial RCRA permits for existing HWM
facilities, the Regional Administrator shall have
the discretion to provide a hearing under the pro-
cedures in subpart F. The permit applicant may re-
quest such a hearing pursuant to § 124.114 no one
or more issues, if the applicant explains in his re-
quest why he or she believes those issues:
(i) Are genuine issues to material fact; and (ii)
determine the outcome of one or more contested
permit conditions identified as such in the appli-
cant's request, that would require extensive
changes to the facility ("contested major permit
conditions"). If the Regional Administrator de-
cides to deny the request, he or she shall send to
the applicant a brief written statement of his or her
reasons for concluding that no such determinative
issues have been presented for resolution in such
a hearing.
[48 FR 14264, Apr. 1, 1983, as amended at 49 FR 17718,
Apr. 24, 1984; 50 FR 6941, Feb. 19, 1985; 54 FR 258,
Jan. 4, 1989]
§124.13 Obligation to raise issues and
provide information during the
public comment period.
All persons, including applicants, who believe
any condition of a draft permit is inappropriate or
that the Director's tentative decision to deny an
application, terminate a permit, or prepare a draft
permit is inappropriate, must raise all reasonably
ascertainable issues and submit all reasonably
available arguments supporting their position by
the close of the public comment period (including
any public hearing) under §124.10. Any support-
ing materials which are submitted shall be in-
cluded in full and may not be incorporated by ref-
erence, unless they are already part of the adminis-
trative record in the same proceeding, or consist of
State or Federal statutes and regulations, EPA doc-
uments of general applicability, or other generally
available reference materials. Commenters shall
make supporting materials not already included in
the administrative record available to EPA as di-
rected by the Regional Administrator. (A comment
period longer than 30 days may be necessary to
give commenters a reasonable opportunity to com-
ply with the requirements of this section. Addi-
tional time shall be granted under § 124.10 to the
extent that a commenter who requests additional
time demonstrates the need for such time.)
[49 FR 38051, Sept. 26, 1984]
§124.14 Reopening of the public com-
ment period.
(a)(l) The Regional Administrator may order
the public comment period reopened if the proce-
dures of this paragraph could expedite the deci-
sionmaking process. When the public comment pe-
riod is reopened under this paragraph, all persons,
including applicants, who believe any condition of
a draft permit is inappropriate or that the Regional
Administrator's tentative decision to deny an ap-
plication, terminate a permit, or prepare a draft
permit is inappropriate, must submit all reasonably
available factual grounds supporting their position,
including all supporting material, by a date, not
less than sixty days after public notice under para-
graph (a)(2) of this section, set by the Regional
Administrator. Thereafter, any person may file a
written response to the material filed by any other
person, by a date, not less than twenty days after
the date set for filing of the material, set by the
Regional Administrator.
12
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§124.16
(2) Public notice of any comment period under
this paragraph shall identify the issues to which
the requirements of § 124.14(a) shall apply.
(3) On his own motion or on the request of any
person, the Regional Administrator may direct that
the requirements of paragraph (a)(l) of this section
shall apply during the initial comment period
where it reasonably appears that issuance of the
permit will be contested and that applying the re-
quirements of paragraph (a)(l) of this section will
substantially expedite the decisionmaking process.
The notice of the draft permit shall state whenever
this has been done.
(4) A comment period of longer than 60 days
will often be necessary in complicated proceedings
to give commenters a reasonable opportunity to
comply with the requirements of this section.
Commenters may request longer comment periods
and they shall be granted under § 124.10 to the ex-
tent they appear necessary.
(b) If any data information or arguments sub-
mitted during the public comment period, includ-
ing information or arguments required under
§ 124.13, appear to raise substantial new questions
concerning a permit, the Regional Administrator
may take one or more of the following actions:
(1) Prepare a new draft permit, appropriately
modified, under § 124.6;
(2) Prepare a revised statement of basis under
§ 124.7, a fact sheet or revised fact sheet under
§124.8 and reopen the comment period under
§124.14; or
(3) Reopen or extend the comment period under
§124.10 to give interested persons an opportunity
to comment on the information or arguments sub-
mitted.
(c) Comments filed during the reopened com-
ment period shall be limited to the substantial new
questions that caused its reopening. The public no-
tice under §124.10 shall define the scope of the
reopening.
(d) For RCRA, UIC, or NPDES permits, the
Regional Administrator may also, in the cir-
cumstances described above, elect to hold further
proceedings under subpart F. This decision may be
combined with any of the actions enumerated in
paragraph (b) of this section.
(e) Public notice of any of the above actions
shall be issued under § 124.10.
[48 FR 14264, Apr. 1, 1983, as amended at 49 FR 38051,
Sept. 26, 1984]
§124.15 Issuance and effective date of
permit.
(a) After the close of the public comment period
under § 124.10 on a draft permit, the Regional Ad-
ministrator shall issue a final permit decision (or
a decision to deny a permit for the active life of
a RCRA hazardous waste management facility or
unit under §270.29). The Regional Administrator
shall notify the applicant and each person who has
submitted written comments or requested notice of
the final permit decision. This notice shall include
reference to the procedures for appealing a deci-
sion on a RCRA, UIC, or PSD permit or for con-
testing a decision on an NPDES permit or a deci-
sion to terminate a RCRA permit. For the pur-
poses of this section, a final permit decision means
a final decision to issue, deny, modify, revoke and
reissue, or terminate a permit.
(b) A final permit decision (or a decision to
deny a permit for the active life of a RCRA haz-
ardous waste management facility or unit under
§270.29) shall become effective 30 days after the
service of notice of the decision unless:
(1) A later effective date is specified in the de-
cision; or
(2) Review is requested under § 124.19 (RCRA,
UIC, and PSD permits) or an evidentiary hearing
is requested under § 124.74 (NPDES permit and
RCRA permit terminations); or
(3) No comments requested a change in the
draft permit, in which case the permit shall be-
come effective immediately upon issuance.
[48 FR 14264, Apr. 1, 1983, as amended at 54 FR 9607,
Mar. 7, 1989]
§124.16 Stays of contested permit con-
ditions.
(a) Stays. (1) If a request for review of a RCRA
or UIC permit under §124.19 or an NPDES per-
mit under §124.74 or §124.114 is granted or if
conditions of a RCRA or UIC permit are consoli-
dated for reconsideration in an evidentiary hearing
on an NPDES permit under §§ 124.74, 124.82 or
124.114, the effect of the contested permit condi-
tions shall be stayed and shall not be subject to ju-
dicial review pending final agency action. (No stay
of a PSD permit is available under this section.)
If the permit involves a new facility or new injec-
tion well, new source, new discharger or a
recommencing discharger, the applicant shall be
without a permit for the proposed new facility, in-
jection well, source or discharger pending final
agency action. See also § 124.60.
(2) Uncontested conditions which are not sever-
able from those contested shall be stayed together
with the contested conditions. Stayed provisions of
permits for existing facilities, injection wells, and
sources shall be identified by the Regional Admin-
istrator. All other provisions of the permit for the
existing facility, injection well, or source shall re-
main fully effective and enforceable.
(b) Stays based on cross effects. (1) A stay may
be granted based on the grounds that an appeal to
the Administrator under §124.19 of one permit
may result in changes to another EPA-issued per-
mit only when each of the permits involved has
13
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§124.17
been appealed to the Administrator and he or she
has accepted each appeal.
(2) No stay of an EPA-issued RCRA, UIC, or
NPDES permit shall be granted based on the stay-
ing of any State-issued permit except at the discre-
tion of the Regional Administrator and only upon
written request from the State Director.
(c) Any facility or activity holding an existing
permit must:
(1) Comply with the conditions of that permit
during any modification or revocation and
reissuance proceeding under § 124.5; and
(2) To the extent conditions of any new permit
are stayed under this section, comply with the con-
ditions of the existing permit which correspond to
the stayed conditions, unless compliance with the
existing conditions would be technologically in-
compatible with compliance with other conditions
of the new permit which have not been stayed.
§ 124.17 Response to comments.
(a) (Applicable to State programs, see §§123.25
(NPDES), 145.11 (UIC), 233.26(404), and 271.14
(RCRA).) At the time that any final permit deci-
sion is issued under §124.15, the Director shall
issue a response to comments. States are only re-
quired to issue a response to comments when a
final permit is issued. This response shall:
(1) Specify which provisions, if any, of the draft
permit have been changed in the final permit deci-
sion, and the reasons for the change; and
(2) Briefly describe and respond to all signifi-
cant comments on the draft permit or the permit
application (for section 404 permits only) raised
during the public comment period, or during any
hearing.
(b) For EPA-issued permits, any documents
cited in the response to comments shall be in-
cluded in the administrative record for the final
permit decision as defined in §124.18. If new
points are raised or new material supplied during
the public comment period, EPA may document
its response to those matters by adding new mate-
rials to the administrative record.
(c) (Applicable to State programs, see §§123.25
(NPDES), 145.11 (UIC), 233.26(404), and 271.14
(RCRA).) The response to comments shall be
available to the public.
§124.18 Administrative record for
final permit when EPA is the per-
mitting authority.
(a) The Regional Administrator shall base final
permit decisions under §124.15 on the administra-
tive record defined in this section.
(b) The administrative record for any final per-
mit shall consist of the administrative record for
the draft permit and:
(1) All comments received during the public
comment period provided under §124.10 (includ-
ing any extension or reopening under § 124.14);
(2) The tape or transcript of any hearing(s) held
under §124.12;
(3) Any written materials submitted at such a
hearing;
(4) The response to comments required by
§124.17 and any new material placed in the
record under that section;
(5) For NPDES new source permits only, final
environmental impact statement and any supple-
ment to the final EIS;
(6) Other documents contained in the supporting
file for the permit; and
(7) The final permit.
(c) The additional documents required under
paragraph (b) of this section should be added to
the record as soon as possible after their receipt or
publication by the Agency. The record shall be
complete on the date the final permit is issued.
(d) This section applies to all final RCRA, UIC,
PSD, and NPDES permits when the draft permit
was subject to the administrative record require-
ments of § 124.9 and to all NPDES permits when
the draft permit was included in a public notice
after October 12, 1979.
(e) Material readily available at the issuing Re-
gional Office, or published materials which are
generally available and which are included in the
administrative record under the standards of this
section or of § 124.17 ("Response to comments"),
need not be physically included in the same file
as the rest of the record as long as it is specifi-
cally referred to in the statement of basis or fact
sheet or in the response to comments.
§124.19 Appeal of RCRA, UIC, and
PSD permits.
(a) Within 30 days after a RCRA, UIC, or PSD
final permit decision (or a decision under §270.29
to deny a permit for the active life of a RCRA
hazardous waste management facility or unit) has
been issued under §124.15, any person who filed
comments on that draft permit or participated in
the public hearing may petition the Environmental
Appeals Board to review any condition of the per-
mit decision. Any person who failed to file com-
ments or failed to participate in the public hearing
on the draft permit may petition for administrative
review only to the extent of the changes from the
draft to the final permit decision. The 30-day pe-
riod within which a person may request review
under this section begins with the service of notice
of the Regional Administrator's action unless a
later date is specified in that notice. The petition
shall include a statement of the reasons supporting
that review, including a demonstration that any is-
sues being raised were raised during the public
14
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§124.21
comment period (including any public hearing) to
the extent required by these regulations and when
appropriate, a showing that the condition in ques-
tion is based on:
(1) A finding of fact or conclusion of law which
is clearly erroneous, or
(2) An exercise of discretion or an important
policy consideration which the Environmental Ap-
peals Board should, in its discretion, review.
(b) The Environmental Appeals Board may also
decide on its initiative to review any condition of
any RCRA, UIC, or PSD permit issued under this
part. The Environmental Appeals Board must act
under this paragraph within 30 days of the service
date of notice of the Regional Administrator's ac-
tion.
(c) Within a reasonable time following the filing
of the petition for review, the Environmental Ap-
peals Board shall issue an order granting or deny-
ing the petition for review. To the extent review
is denied, the conditions of the final permit deci-
sion become final agency action. Public notice of
any grant of review by the Environmental Appeals
Board under paragraph (a) or (b) of this section
shall be given as provided in § 124.10. Public no-
tice shall set forth a briefing schedule for the ap-
peal and shall state that any interested person may
file an amicus brief. Notice of denial of review
shall be sent only to the person(s) requesting re-
view.
(d) The Environmental Appeals Board may
defer consideration of an appeal of a RCRA or
UIC permit under this section until the completion
of formal proceedings under subpart E or F relat-
ing to an NPDES permit issued to the same facil-
ity or activity upon concluding that:
(1) The NPDES permit is likely to raise issues
relevant to a decision of the RCRA or UIC ap-
peals;
(2) The NPDES permit is likely to be appealed;
and
(3) Either: (i) The interests of both the facility
or activity and the public are not likely to be ma-
terially adversely affected by the deferral; or
(ii) Any adverse effect is outweighed by the
benefits likely to result from a consolidated deci-
sion on appeal.
(e) A petition to the Environmental Appeals
Board under paragraph (a) of this section is, under
5 U.S.C. 704, a prerequisite to the seeking of judi-
cial review of the final agency action.
(f)(l) For purposes of judicial review under the
appropriate Act, final agency action occurs when
a final RCRA, UIC, or PSD permit is issued or
denied by EPA and agency review procedures are
exhausted. A final permit decision shall be issued
by the Regional Administrator:
(i) When the Environmental Appeals Board is-
sues notice to the parties that review has been de-
nied;
(ii) When the Environmental Appeals Board is-
sues a decision on the merits of the appeal and the
decision does not include a remand of the pro-
ceedings; or
(iii) Upon the completion of remand proceed-
ings if the proceedings are remanded, unless the
Environmental Appeals Board's remand order spe-
cifically provides that appeal of the remand deci-
sion will be required to exhaust administrative
remedies.
(2) Notice of any final agency action regarding
a PSD permit shall promptly be published in the
FEDERAL REGISTER.
(g) Motions to reconsider a final order shall be
filed within ten (10) days after service of the final
order. Every such motion must set forth the mat-
ters claimed to have been erroneously decided and
the nature of the alleged errors. Motions for recon-
sideration under this provision shall be directed to,
and decided by, the Environmental Appeals Board.
Motions for reconsideration directed to the admin-
istrator, rather than to the Environmental Appeals
Board, will not be considered, except in cases that
the Environmental Appeals Board has referred to
the Administrator pursuant to § 124.2 and in which
the Administrator has issued the final order. A
motion for reconsideration shall not stay the effec-
tive date of the final order unless specifically so
ordered by the Environmental Appeals Board.
[48 FR 14264, Apr. 1, 1983, as amended at 54 FR 9607,
Mar. 7, 1989; 57 FR 5335, Feb. 13, 1992]
§ 124.20 Computation of time.
(a) Any time period scheduled to begin on the
occurrence of an act or event shall begin on the
day after the act or event.
(b) Any time period scheduled to begin before
the occurrence of an act or event shall be com-
puted so that the period ends on the day before the
act or event.
(c) If the final day of any time period falls on
a weekend or legal holiday, the time period shall
be extended to the next working day.
(d) Whenever a party or interested person has
the right or is required to act within a prescribed
period after the service of notice or other paper
upon him or her by mail, 3 days shall be added
to the prescribed time.
§ 124.21 Effective date of part 124.
(a) Except for paragraphs (b) and (c) of this
section, part 124 will become effective July 18,
1980. Because this effective date will precede the
processing of any RCRA or UIC permits, part 124
will apply in its entirety to all RCRA and UIC
permits.
15
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§124.31
(b) All provisions of part 124 pertaining to the
RCRA program will become effective on Novem-
ber 19, 1980.
(c) All provisions of part 124 pertaining to the
UIC program will become effective July 18, 1980,
but shall not be implemented until the effective
date of 40 CFR part 146.
(d) This part does not significantly change the
way in which NPDES permits are processed. Since
October 12, 1979, NPDES permits have been the
subject to almost identical requirements in the re-
vised NPDES regulations which were promulgated
on June 7, 1979. See 44 FR 32948. To the extent
this part changes the revised NPDES permit regu-
lations, those changes will take effect as to all per-
mit proceedings in progress on July 3, 1980.
(e) This part also does not significantly change
the way in which PSD permits are processed. For
the most part, these regulations will also apply to
PSD proceedings in progress on July 18, 1980.
However, because it would be disruptive to require
retroactively a formal administrative record for
PSD permits issued without one, §§ 124.9 and
124.18 will apply to PSD permits for which draft
permits were prepared after the effective date of
these regulations.
Sub part B—Specific Procedures
Applicable to RCRA Permits
§124.31 Pre-application public meet-
ing and notice.
(a) Applicability. The requirements of this sec-
tion shall apply to all RCRA part B applications
seeking initial permits for hazardous waste man-
agement units over which EPA has permit issu-
ance authority. The requirements of this section
shall also apply to RCRA part B applications
seeking renewal of permits for such units, where
the renewal application is proposing a significant
change in facility operations. For the purposes of
this section, a "significant change" is any change
that would qualify as a class 3 permit modification
under 40 CFR 270.42. For the purposes of this
section only, "hazardous waste management units
over which EPA has permit issuance authority"
refers to hazardous waste management units for
which the State where the units are located has not
been authorized to issue RCRA permits pursuant
to 40 CFR part 271. The requirements of this sec-
tion do not apply to permit modifications under 40
CFR 270.42 or to applications that are submitted
for the sole purpose of conducting post-closure ac-
tivities or post-closure activities and corrective ac-
tion at a facility.
(b) Prior to the submission of a part B RCRA
permit application for a facility, the applicant must
hold at least one meeting with the public in order
to solicit questions from the community and in-
form the community of proposed hazardous waste
management activities. The applicant shall post a
sign-in sheet or otherwise provide a voluntary op-
portunity for attendees to provide their names and
addresses.
(c) The applicant shall submit a summary of the
meeting, along with the list of attendees and their
addresses developed under paragraph (b) of this
section, and copies of any written comments or
materials submitted at the meeting, to the permit-
ting agency as a part of the part B application, in
accordance with 40 CFR 270.14(b).
(d) The applicant must provide public notice of
the pre-application meeting at least 30 days prior
to the meeting. The applicant must maintain, and
provide to the permitting agency upon request,
documentation of the notice.
(1) The applicant shall provide public notice in
all of the following forms:
(i) A newspaper advertisement. The applicant
shall publish a notice, fulfilling the requirements
in paragraph (d)(2) of this section, in a newspaper
of general circulation in the county or equivalent
jurisdiction that hosts the proposed location of the
facility. In addition, the Director shall instruct the
applicant to publish the notice in newspapers of
general circulation in adjacent counties or equiva-
lent jurisdictions, where the Director determines
that such publication is necessary to inform the af-
fected public. The notice must be published as a
display advertisement.
(ii) A visible and accessible sign. The applicant
shall post a notice on a clearly marked sign at or
near the facility, fulfilling the requirements in
paragraph (d)(2) of this section. If the applicant
places the sign on the facility property, then the
sign must be large enough to be readable from the
nearest point where the public would pass by the
site.
(iii) A broadcast media announcement. The ap-
plicant shall broadcast a notice, fulfilling the re-
quirements in paragraph (d)(2) of this section, at
least once on at least one local radio station or tel-
evision station. The applicant may employ another
medium with prior approval of the Director.
(iv) A notice to the permitting agency. The ap-
plicant shall send a copy of the newspaper notice
to the permitting agency and to the appropriate
units of State and local government, in accordance
with §124.10(c)(l)(x).
(2) The notices required under paragraph (d)(l)
of this section must include:
(i) The date, time, and location of the meeting;
(ii) A brief description of the purpose of the
meeting;
(iii) A brief description of the facility and pro-
posed operations, including the address or a map
(e.g., a sketched or copied street map) of the facil-
ity location;
16
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§124.33
(iv) A statement encouraging people to contact
the facility at least 72 hours before the meeting if
they need special access to participate in the meet-
ing; and
(v) The name, address, and telephone number of
a contact person for the applicant.
[60 FR 63431, Dec. 11, 1995]
§124.32 Public notice requirements at
the application stage.
(a) Applicability. The requirements of this sec-
tion shall apply to all RCRA part B applications
seeking initial permits for hazardous waste man-
agement units over which EPA has permit issu-
ance authority. The requirements of this section
shall also apply to RCRA part B applications
seeking renewal of permits for such units under 40
CFR 270.51. For the purposes of this section only,
"hazardous waste management units over which
EPA has permit issuance authority" refers to haz-
ardous waste management units for which the
State where the units are located has not been au-
thorized to issue RCRA permits pursuant to 40
CFR part 271. The requirements of this section do
not apply to permit modifications under 40 CFR
270.42 or permit applications submitted for the
sole purpose of conducting post-closure activities
or post-closure activities and corrective action at a
facility.
(b) Notification at application submittal.
(1) The Director shall provide public notice as
set forth in § 124.10(c)(l)(ix), and notice to appro-
priate units of State and local government as set
forth in § 124.10(c)(l)(x), that a part B permit ap-
plication has been submitted to the Agency and is
available for review.
(2) The notice shall be published within a rea-
sonable period of time after the application is re-
ceived by the Director. The notice must include:
(i) The name and telephone number of the ap-
plicant's contact person;
(ii) The name and telephone number of the per-
mitting agency's contact office, and a mailing ad-
dress to which information, opinions, and inquiries
may be directed throughout the permit review
process;
(iii) An address to which people can write in
order to be put on the facility mailing list;
(iv) The location where copies of the permit ap-
plication and any supporting documents can be
viewed and copied;
(v) A brief description of the facility and pro-
posed operations, including the address or a map
(e.g., a sketched or copied street map) of the facil-
ity location on the front page of the notice; and
(vi) The date that the application was submitted.
(c) Concurrent with the notice required under
§ 124.32(b) of this subpart, the Director must place
the permit application and any supporting docu-
ments in a location accessible to the public in the
vicinity of the facility or at the permitting agen-
cy's office.
[60 FR 63432, Dec. 11, 1995]
§124.33 Information repository.
(a) Applicability. The requirements of this sec-
tion apply to all applications seeking RCRA per-
mits for hazardous waste management units over
which EPA has permit issuance authority. For the
purposes of this section only, "hazardous waste
management units over which EPA has permit is-
suance authority" refers to hazardous waste man-
agement units for which the State where the units
are located has not been authorized to issue RCRA
permits pursuant to 40 CFR part 271.
(b) The Director may assess the need, on a
case-by-case basis, for an information repository.
When assessing the need for an information repos-
itory, the Director shall consider a variety of fac-
tors, including: the level of public interest; the
type of facility; the presence of an existing reposi-
tory; and the proximity to the nearest copy of the
administrative record. If the Director determines,
at any time after submittal of a permit application,
that there is a need for a repository, then the Di-
rector shall notify the facility that it must establish
and maintain an information repository. (See 40
CFR 270.30(m) for similar provisions relating to
the information repository during the life of a per-
mit).
(c) The information repository shall contain all
documents, reports, data, and information deemed
necessary by the Director to fulfill the purposes
for which the repository is established. The Direc-
tor shall have the discretion to limit the contents
of the repository.
(d) The information repository shall be located
and maintained at a site chosen by the facility. If
the Director finds the site unsuitable for the pur-
poses and persons for which it was established,
due to problems with the location, hours of avail-
ability, access, or other relevant considerations,
then the Director shall specify a more appropriate
site.
(e) The Director shall specify requirements for
informing the public about the information reposi-
tory. At a minimum, the Director shall require the
facility to provide a written notice about the infor-
mation repository to all individuals on the facility
mailing list.
(f) The facility owner/operator shall be respon-
sible for maintaining and updating the repository
with appropriate information throughout a time pe-
riod specified by the Director. The Director may
close the repository at his or her discretion, based
on the factors in paragraph (b) of this section.
[60 FR 63432, Dec. 11, 1995]
17
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§124.41
Sub pa it C — Specific Procedures
Applicable to PSD Permits
§124.41 Definitions applicable to PSD
permits.
Whenever PSD permits are processed under this
part, the following terms shall have the following
meanings:
Administrator, EPA, and Regional Administrator
shall have the meanings set forth in § 124.2, ex-
cept when EPA has delegated authority to admin-
ister those regulations to another agency under the
applicable subsection of 40 CFR 52.21, the term
EPA shall mean the delegate agency and the term
Regional Administrator shall mean the chief ad-
ministrative officer of the delegate agency.
Application means an application for a PSD per-
mit.
Appropriate Act and Regulations means the
Clean Air Act and applicable regulations promul-
gated under it.
Approved program means a State implementa-
tion plan providing for issuance of PSD permits
which has been approved by EPA under the Clean
Air Act and 40 CFR part 51. An approved State
is one administering an approved program. State
Director as used in § 124.4 means the person(s)
responsible for issuing PSD permits under an ap-
proved program, or that person's delegated rep-
resentative.
Construction has the meaning given in 40 CFR
52.21.
Director means the Regional Administrator.
Draft permit shall have the meaning set forth in
§ 124.2.
Facility or activity means a major PSD station-
ary source or major PSD modification.
Federal Land Manager has the meaning given
in 40 CFR 52.21.
Indian Governing Body has the meaning given
in 40 CFR 52.21.
Major PSD modification means a major modi-
fication as defined in 40 CFR 52.21.
Major PSD stationary source means a major
stationary source as defined in 40 CFR
Owner or operator means the owner or operator
of any facility or activity subject to regulation
under 40 CFR 52.21 or by an approved State.
Permit or PSD permit means a permit issued
under 40 CFR 52.21 or by an approved State.
Person includes an individual, corporation, part-
nership, association, State, municipality, political
subdivision of a State, and any agency, depart-
ment, or instrumentality of the United States and
any officer, agent or employee thereof.
Regulated activity or activity subject to regula-
tion means a major PSD stationary source or
major PSD modification.
Site means the land or water area upon which
a major PSD stationary source or major PSD
modification is physically located or conducted, in-
cluding but not limited to adjacent land used for
utility systems; as repair, storage, shipping or
processing areas; or otherwise in connection with
the major PSD stationary source or major PSD
modification.
State means a State, the District of Columbia,
the Commonwealth of Puerto Rico, the Virgin Is-
lands, Guam, and American Samoa and includes
the Commonwealth of the Northern Mariana Is-
lands.
§ 124.42 Additional procedures for PSD
permits affecting Class I areas.
(a) The Regional Administrator shall provide
notice of any permit application for a proposed
major PSD stationary source or major PSD modi-
fication the emissions from which would affect a
Class I area to the Federal Land Manager, and the
Federal official charged with direct responsibility
for management of any lands within such area.
The Regional Administrator shall provide such no-
tice promptly after receiving the application.
(b) Any demonstration which the Federal Land
Manager wishes to present under 40 CFR
52.21(q)(3), and any variances sought by an owner
or operator under §52.21(q)(4) shall be submitted
in writing, together with any necessary supporting
analysis, by the end of the public comment period
under §124.10 or §124.118. (40 CFR 52.21(q)(3)
provides for denial of a PSD permit to a facility
or activity when the Federal Land Manager dem-
onstrates that its emissions would adversely affect
a Class I area even though the applicable incre-
ments would not be exceeded. 40 CFR 52.21(q)(4)
conversely authorizes EPA, with the concurrence
of the Federal Land Manager and State respon-
sible, to grant certain variances from the otherwise
applicable emission limitations to a facility or ac-
tivity whose emissions would affect a Class I
area.)
(c) Variances authorized by 40 CFR 52.21
(q)(5) through (q)(7) shall be handled as specified
in those paragraphs and shall not be subject to this
part. Upon receiving appropriate documentation of
a variance properly granted under any of these
provisions, the Regional Administrator shall enter
the variance in the administrative record. Any de-
cisions later made in proceedings under this part
concerning that permit shall be consistent with the
conditions of that variance.
18
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§124.53
Subpart D—Specific Procedures
Applicable to NPDES Permits
§ 124.51 Purpose and scope.
(a) This subpart sets forth additional require-
ments and procedures for decisionmaking for the
NPDES program.
(b) Decisions on NPDES variance requests ordi-
narily will be made during the permit issuance
process. Variances and other changes in permit
conditions ordinarily will be decided through the
same notice-and-comment and hearing procedures
as the basic permit.
(c) As stated in 40 CFR 131.4, an Indian Tribe
that meets the statutory criteria which authorize
EPA to treat the Tribe in a manner similar to that
in which it treats a State for purposes of the Water
Quality Standards program is likewise qualified
for such treatment for purposes of State certifi-
cation of water quality standards pursuant to sec-
tion 401(a)(l) of the Act and subpart D of this
part.
[48 FR 14264, Apr. 1, 1983, as amended at 58 FR 67983,
Dec. 22, 1993; 59 FR 64343, Dec. 14, 1994]
§ 124.52 Permits required on a case-by-
case basis.
(a) Various sections of part 122, subpart B
allow the Director to determine, on a case-by-case
basis, that certain concentrated animal feeding op-
erations (§ 122.23), concentrated aquatic animal
production facilities (§122.24), storm water dis-
charges (§ 122.26), and certain other facilities cov-
ered by general permits (§ 122.28) that do not gen-
erally require an individual permit may be re-
quired to obtain an individual permit because of
their contributions to water pollution.
(b) Whenever the Regional Administrator de-
cides that an individual permit is required under
this section, except as provided in paragraph (c) of
this section, the Regional Administrator shall no-
tify the discharger in writing of that decision and
the reasons for it, and shall send an application
form with the notice. The discharger must apply
for a permit under § 122.21 within 60 days of no-
tice, unless permission for a later date is granted
by the Regional Administrator. The question
whether the designation was proper will remain
open for consideration during the public comment
period under §124.11 or §124.118 and in any
subsequent hearing.
(c) Prior to a case-by-case determination that an
individual permit is required for a storm water dis-
charge under this section (see 40 CFR 122.26
(a)(l)(v), (c)(l)(v), and (g)(l)(i)), the Regional
Administrator may require the discharger to sub-
mit a permit application or other information re-
garding the discharge under section 308 of the
CWA. In requiring such information, the Regional
Administrator shall notify the discharger in writing
and shall send an application form with the notice.
The discharger must apply for a permit under 40
CFR 122.26 (a)(l)(v) and (c)(l)(v) within 60 days
of notice or under 40 CFR 122.26(g)(l)(i) within
180 days of notice, unless permission for a later
date is granted by the Regional Administrator. The
question whether the initial designation was proper
will remain open for consideration during the pub-
lic comment period under §124.11 or §124.118
and in any subsequent hearing.
[55 FR 48075, Nov. 16, 1990, as amended at 60 FR
17957, Apr. 7, 1995; 60 FR 19464, Apr. 18, 1995; 60 FR
40235, Aug. 7, 1995]
§124.53 State certification.
(a) Under CWA section 401(a)(l), EPA may not
issue a permit until a certification is granted or
waived in accordance with that section by the
State in which the discharge originates or will
originate.
(b) Applications received without a State certifi-
cation shall be forwarded by the Regional Admin-
istrator to the certifying State agency with a re-
quest that certification be granted or denied.
(c) If State certification has not been received
by the time the draft permit is prepared, the Re-
gional Administrator shall send the certifying State
agency:
(1) A copy of a draft permit;
(2) A statement that EPA cannot issue or deny
the permit until the certifying State agency has
granted or denied certification under §124.55, or
waived its right to certify; and
(3) A statement that the State will be deemed
to have waived its right to certify unless that right
is exercised within a specified reasonable time not
to exceed 60 days from the date the draft permit
is mailed to the certifying State agency unless the
Regional Administrator finds that unusual cir-
cumstances require a longer time.
(d) State certification shall be granted or denied
within the reasonable time specified under para-
graph (c)(3) of this section. The State shall send
a notice of its action, including a copy of any cer-
tification, to the applicant and the Regional Ad-
ministrator.
(e) State certification shall be in writing and
shall include:
(1) Conditions which are necessary to assure
compliance with the applicable provisions of
CWA sections 208(e), 301, 302, 303, 306, and 307
and with appropriate requirements of State law;
(2) When the State certifies a draft permit in-
stead of a permit application, any conditions more
stringent than those in the draft permit which the
State finds necessary to meet the requirements list-
ed in paragraph (e)(l) of this section. For each
19
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§124.54
more stringent condition, the certifying State agen-
cy shall cite the CWA or State law references
upon which that condition is based. Failure to pro-
vide such a citation waives the right to certify
with respect to that condition; and
(3) A statement of the extent to which each
condition of the draft permit can be made less
stringent without violating the requirements of
State law, including water quality standards. Fail-
ure to provide this statement for any condition
waives the right to certify or object to any less
stringent condition which may be established dur-
ing the EPA permit issuance process.
§124.54 Special provisions for State
certification and concurrence on
applications for section 301 (h)
variances.
(a) When an application for a permit incorporat-
ing a variance request under CWA section 301(h)
is submitted to a State, the appropriate State offi-
cial shall either:
(1) Deny the request for the CWA section
301(h) variance (and so notify the applicant and
EPA) and, if the State is an approved NPDES
State and the permit is due for reissuance, process
the permit application under normal procedures; or
(2) Forward a certification meeting the require-
ments of § 124.53 to the Regional Administrator.
(b) When EPA issues a tentative decision on the
request for a variance under CWA section 301(h),
and no certification has been received under para-
graph (a) of this section, the Regional Adminis-
trator shall forward the tentative decision to the
State in accordance with §124.53(b) specifying a
reasonable time for State certification and concur-
rence. If the State fails to deny or grant certifi-
cation and concurrence under paragraph (a) of this
section within such reasonable time, certification
shall be waived and the State shall be deemed to
have concurred in the issuance of a CWA section
301(h) variance.
(c) Any certification provided by a State under
paragraph (a)(2) of this section shall constitute the
State's concurrence (as required by section 301(h))
in the issuance of the permit incorporating a sec-
tion 301(h) variance subject to any conditions
specified therein by the State. CWA section 301(h)
certification and concurrence under this section
will not be forwarded to the State by EPA for
recertification after the permit issuance process;
States must specify any conditions required by
State law, including water quality standards, in the
initial certification.
§ 124.55 Effect of State certification.
(a) When certification is required under CWA
section 401(a)(l) no final permit shall be issued:
(1) If certification is denied, or
(2) Unless the final permit incorporates the re-
quirements specified in the certification under
§124.53(d)(l) and (2).
(b) If there is a change in the State law or regu-
lation upon which a certification is based, or if a
court of competent jurisdiction or appropriate State
board or agency stays, vacates, or remands a cer-
tification, a State which has issued a certification
under § 124.53 may issue a modified certification
or notice of waiver and forward it to EPA. If the
modified certification is received before final
agency action on the permit, the permit shall be
consistent with the more stringent conditions
which are based upon State law identified in such
certification. If the certification or notice of waiver
is received after final agency action on the permit,
the Regional Administrator may modify the permit
on request of the permittee only to the extent nec-
essary to delete any conditions based on a condi-
tion in a certification invalidated by a court of
competent jurisdiction or by an appropriate State
board or agency.
(c) A State may not condition or deny a certifi-
cation on the grounds that State law allows a less
stringent permit condition. The Regional Adminis-
trator shall disregard any such certification condi-
tions, and shall consider those conditions or deni-
als as waivers of certification.
(d) A condition in a draft permit may be
changed during agency review in any manner con-
sistent with a certification meeting the require-
ments of § 124.53(d). No such changes shall re-
quire EPA to submit the permit to the State for
recertification.
(e) Review and appeals of limitations and con-
ditions attributable to State certification shall be
made through the applicable procedures of the
State and may not be made through the procedures
in this part.
(f) Nothing in this section shall affect EPA's
obligation to comply with § 122.47. See CWA sec-
tion 301(b)(l)(C).
§124.56 Fact sheets.
(Applicable to State programs, see §123.25
(NPDES).) In addition to meeting the requirements
of §124.8, NPDES fact sheets shall contain the
following:
(a) Any calculations or other necessary expla-
nation of the derivation of specific effluent limita-
tions and conditions or standards for sewage
sludge use or disposal, including a citation to the
applicable effluent limitation guideline, perform-
ance standard, or standard for sewage sludge use
or disposal as required by § 122.44 and reasons
why they are applicable or an explanation of how
the alternate effluent limitations were developed.
20
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§124.59
(b)(l) When the draft permit contains any of the
following conditions, an explanation of the reasons
why such conditions are applicable:
(i) Limitations to control toxic pollutants under
§ 122.44(e);
(ii) Limitations on internal waste streams under
§ 122.45(i); or
(iii) Limitations on indicator pollutants under
§125.3(g).
(iv) Limitations set on a case-by-case basis
under § 125.3 (c)(2) or (c)(3), or pursuant to Sec-
tion 405(d)(4) of the CWA.
(2) For every permit to be issued to a treatment
works owned by a person other than a State or
municipality, an explanation of the Director's deci-
sion on regulation of users under § 122.44(m).
(c) When appropriate, a sketch or detailed de-
scription of the location of the discharge or regu-
lated activity described in the application; and
(d) For EPA-issued NPDES permits, the re-
quirements of any State certification under
§124.53.
(e) For permits that include a sewage sludge
land application plan under 40 CFR
501.15(a)(2)(ix), a brief description of how each
of the required elements of the land application
plan are addressed in the permit.
[48 FR 14264, Apr. 1, 1983, as amended at 49 FR 38051,
Sept. 26, 1984; 54 FR 18786, May 2, 1989]
§ 124.57 Public notice.
(a) Section 316(a) requests (applicable to State
programs, see §123.25). In addition to the infor-
mation required under § 124.10(d)(l), public notice
of an NPDES draft permit for a discharge where
a CWA section 316(a) request has been filed
under § 122.21(1) shall include:
(1) A statement that the thermal component of
the discharge is subject to effluent limitations
under CWA section 301 or 306 and a brief de-
scription, including a quantitative statement, of the
thermal effluent limitations proposed under section
301 or 306;
(2) A statement that a section 316(a) request has
been filed and that alternative less stringent efflu-
ent limitations may be imposed on the thermal
component of the discharge under section 316(a)
and a brief description, including a quantitative
statement, of the alternative effluent limitations, if
any, included in the request; and
(3) If the applicant has filed an early screening
request under §125.72 for a section 316(a) vari-
ance, a statement that the applicant has submitted
such a plan.
(b) Evidentiary hearings under subpart E. In ad-
dition to the information required under
§ 124.10(d)(2), public notice of a hearing under
subpart E shall include:
(1) Reference to any public hearing under
§ 124.12 on the disputed permit;
(2) Name and address of the person(s) request-
ing the evidentiary hearing;
(3) A statement of the following procedures:
(i) Any person seeking to be a party must file
a request to be admitted as a party to the hearing
within 15 days of the date of publication of the
notice;
(ii) Any person seeking to be a party may, sub-
ject to the requirements of § 124.76, propose mate-
rial issues of fact or law not already raised by the
original requester or another party;
(iii) The conditions of the permit(s) at issue
may be amended after the evidentiary hearing and
any person interested in those permit(s) must re-
quest to be a party in order to preserve any right
to appeal or otherwise contest the final
administative decision.
(c) Non-adversary panel procedures under
subpart F. (1) In addition to the information re-
quired under § 124.10(d)(2), mailed public notice
of a draft permit to be processed under subpart F
shall include a statement that any hearing shall be
held under subpart F (panel hearing).
(2) Mailed public notice of a panel hearing
under subpart F shall include:
(i) Name and address of the person requesting
the hearing, or a statement that the hearing is
being held by order of the Regional Administrator,
and the name and address of each known party to
the hearing;
(ii) A statement whether the recommended deci-
sion will be issued by the Presiding Officer or by
the Regional Administrator;
(iii) The due date for filing a written request to
participate in the hearing under §124.117; and
(iv) The due date for filing comments under
§124.118.
[48 FR 14264, Apr. 1, 1983; 50 FR 6941, Feb. 19, 1985]
§124.58 [Reserved]
§124.59 Conditions requested by the
Corps of Engineers and other gov-
ernment agencies.
(Applicable to State programs, see §123.25
(NPDES).) (a) If during the comment period for an
NPDES draft permit, the District Engineer advises
the Director in writing that anchorage and naviga-
tion of any of the waters of the United States
would be substantially impaired by the granting of
a permit, the permit shall be denied and the appli-
cant so notified. If the District Engineer advised
the Director that imposing specified conditions
upon the permit is necessary to avoid any substan-
tial impairment of anchorage or navigation, then
the Director shall include the specified conditions
in the permit. Review or appeal of denial of a per-
21
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§124.60
mil or of conditions specified by the District Engi-
neer shall be made through the applicable proce-
dures of the Corps of Engineers, and may not be
made through the procedures provided in this part.
If the conditions are stayed by a court of com-
petent jurisdiction or by applicable procedures of
the Corps of Engineers, those conditions shall be
considered stayed in the NPDES permit for the
duration of that stay.
(b) If during the comment period the U.S. Fish
and Wildlife Service, the National Marine Fish-
eries Service, or any other State or Federal agency
with jurisdiction over fish, wildlife, or public
health advises the Director in writing that the im-
position of specified conditions upon the permit is
necessary to avoid substantial impairment of fish,
shellfish, or wildlife resources, the Director may
include the specified conditions in the permit to
the extent they are determined necessary to carry
out the provisions of § 122.49 and of the CWA.
(c) In appropriate cases the Director may con-
sult with one or more of the agencies referred to
in this section before issuing a draft permit and
may reflect their views in the statement of basis,
the fact sheet, or the draft permit.
[48 FR 14264, Apr. 1, 1983, as amended at 54 FR 258,
Jan. 4, 1989]
§124.60 Issuance and effective date
and stays of NPDES permits.
In addition to the requirements of §124.15, the
following provisions apply to NPDES permits and
to RCRA or UIC permits to the extent those per-
mits may have been consolidated with an NPDES
permit in a formal hearing:
(a)(l) If a request for a formal hearing is grant-
ed under §124.75 or §124.114 regarding the ini-
tial permit issued for a new source, a new dis-
charger, or a recommencing discharger, or if a pe-
tition for review of the denial of a request for a
formal hearing with respect to such a permit is
timely filed with the Administrator under § 124.91,
the applicant shall be without a permit pending
final Agency action under § 124.91.
(2) Whenever a source or facility subject to this
paragraph or to paragraph (c)(7) of this section has
received a final permit under §124.15 which is the
subject of a hearing request under § 124.74 or a
formal hearing under § 124.75, the Presiding Offi-
cer, on motion by the source or facility, may issue
an order authorizing it to begin discharges (or in
the case of RCRA permits, construction or oper-
ations) if it complies with all uncontested condi-
tions of the final permit and all other appropriate
conditions imposed by the Presiding Officer dur-
ing the period until final agency action. The mo-
tion shall be granted if no party opposes it, or if
the source or facility demonstrates that:
(i) It is likely to receive a permit to discharge
(or in the case of RCRA permits, to operate or
construct) at that site;
(ii) The environment will not be irreparably
harmed if the source or facility is allowed to begin
discharging (or in the case of RCRA, to begin op-
erating or construction) in compliance with the
conditions of the Presiding Officer's order pending
final agency action; and
(iii) Its discharge (or in the case of RCRA, its
operation or construction) pending final agency ac-
tion is in the public interest.
(3) For RCRA only, no order under paragraph
(a)(2) may authorize a facility to commence con-
struction if any party has challenged a construc-
tion-related permit term or condition.
(b) The Regional Administrator, at any time
prior to the rendering of an initial decision in a
formal hearing on a permit, may withdraw the per-
mit and prepare a new draft permit under § 124.6
addressing the portions so withdrawn. The new
draft permit shall proceed through the same proc-
ess of public comment and opportunity for a pub-
lic hearing as would apply to any other draft per-
mit subject to this part. Any portions of the permit
which are not withdrawn and which are not stayed
under this section shall remain in effect.
(c)(l) If a request for a formal hearing is grant-
ed in whole or in part under § 124.75 regarding a
permit for an existing source, or if a petition for
review of the denial of a request for a formal
hearing with respect to that permit is timely filed
with the Administrator under § 124.91, the force
and effect of the contested conditions of the final
permit shall be stayed. The Regional Administrator
shall notify, in accordance with § 124.75, the dis-
charger and all parties of the uncontested condi-
tions of the final permit that are enforceable obli-
gations of the discharger.
(2) When effluent limitations are contested, but
the underlying control technology is not, the notice
shall identify the installation of the technology in
accordance with the permit compliance schedules
(if uncontested) as an uncontested, enforceable ob-
ligation of the permit.
(3) When a combination of technologies is con-
tested, but a portion of the combination is not con-
tested, that portion shall be identified as uncon-
tested if compatible with the combination of tech-
nologies proposed by the requester.
(4) Uncontested conditions, if inseverable from a
contested condition, shall be considered contested.
(5) Uncontested conditions shall become en-
forceable 30 days after the date of notice under
paragraph (c)(l) of this section granting the re-
quest. If, however, a request for a formal hearing
on a condition was denied and the denial is ap-
pealed under § 124.91, then that condition shall
become enforceable upon the date of the notice of
22
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§124.62
the Administrator's decision on the appeal if the
denial is affirmed, or shall be stayed, in accord-
ance with this section, if the Administrator re-
verses the denial and grants the evidentiary hear-
ing.
(6) Uncontested conditions shall include:
(i) Preliminary design and engineering studies
or other requirements necessary to achieve the
final permit conditions which do not entail sub-
stantial expenditures;
(ii) Permit conditions which will have to be met
regardless of which party prevails at the evi-
dentiary hearing;
(iii) When the discharger proposed a less strin-
gent level of treatment than that contained in the
final permit, any permit conditions appropriate to
meet the levels proposed by the discharger, if the
measures required to attain that less stringent level
of treatment are consistent with the measures re-
quired to attain the limits proposed by any other
party; and
(iv) Construction activities, such as segregation
of waste streams or installation of equipment,
which would partially meet the final permit condi-
tions and could also be used to achieve the dis-
charger's proposed alternative conditions.
(7) If for any offshore or coastal mobile explor-
atory drilling rig or coastal mobile developmental
drilling rig which has never received a finally ef-
fective permit to discharge at a "site," but which
is not a "new discharger" or a "new source," the
Regional Administrator finds that compliance with
certain permit conditions may be necessary to
avoid irreparable environmental harm during the
administrative review, he may specify in the state-
ment of basis or fact sheet that those conditions,
even if contested, shall remain enforceable obliga-
tions of the discharger during administrative re-
view unless otherwise modified by the Presiding
Officer under paragraph (a)(2) of this section.
(d) If at any time after a hearing is granted and
after the Regional Administrator's notice under
paragraph (c)(l) of this section it becomes clear
that a permit requirement is no longer contested,
any party may request the Presiding Officer to
issue an order identifying the requirements as
uncontested. The requirement identified in such
order shall become enforceable 30 days after the
issuance of the order.
(e) When a formal hearing is granted under
§ 124.75 on an application for a renewal of an ex-
isting permit, all provisions of the existing permit
as well as uncontested provisions of the new per-
mit, shall continue fully enforceable and effective
until final agency action under §124.91. (See
§ 122.6) Upon written request from the applicant,
the Regional Administrator may delete require-
ments from the existing permit which unneces-
sarily duplicate uncontested provisions of the new
permit.
(f) When issuing a finally effective NPDES per-
mit the conditions of which were the subject of a
formal hearing under subpart E or F, the Regional
Administrator shall extend the permit compliance
schedule to the extent required by a stay under
this section provided that no such extension shall
be granted which would:
(1) Result in the violation of an applicable stat-
utory deadline; or
(2) Cause the permit to expire more than 5
years after issuance under § 124.15(a).
NOTE: Extensions of compliance schedules under
§ 124.60(f)(2) will not automatically be granted for a pe-
riod equal to the period the stay is in effect for an efflu-
ent limitation. For example, if both the Agency and the
discharger agree that a certain treatment technology is re-
quired by the CWA where guidelines do not apply, but
a hearing is granted to consider the effluent limitations
which the technology will achieve, requirements regarding
installation of the underlying technology will not be
stayed during the hearing. Thus, unless the hearing ex-
tends beyond the final compliance date in the permit, it
will not ordinarily be necessary to extend the compliance
schedule. However, when application of an underlying
technology is challenged, the stay for installation require-
ments relating to that technology would extend for the
duration of the hearing.
(g) For purposes of judicial review under CWA
section 509(b), final agency action on a permit
does not occur unless and until a party has ex-
hausted its administrative remedies under subparts
E and F and §124.91. Any party which neglects
or fails to seek review under §124.91 thereby
waives its opportunity to exhaust available agency
remedies.
(Clean Water Act (33 U.S.C. 1251 et seq.), Safe Drinking
Water Act (42 U.S.C. 300f et seq.), Clean Air Act (42
U.S.C. 7401 et seq.), Resource Conservation and Recov-
ery Act (42 U.S.C. 6901 et seq.))
[48 FR 14264, Apr. 1, 1983, as amended at 48 FR 39620,
Sept. 1, 1983]
§124.61 Final environmental impact
statement.
No final NPDES permit for a new source shall
be issued until at least 30 days after the date of
issuance of a final environmental impact statement
if one is required under 40 CFR 6.805.
§124.62 Decision on variances.
(Applicable to State programs, see §123.25
(NPDES).)
(a) The Director may grant or deny requests for
the following variances (subject to EPA objection
under § 123.44 for State permits):
(1) Extensions under CWA section 301(i) based
on delay in completion of a publicly owned treat-
ment works;
23
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§124.63
(2) After consultation with the Regional Admin-
istrator, extensions under CWA section 301(k)
based on the use of innovative technology; or
(3) Variances under CWA section 316(a) for
thermal pollution.
(b) The State Director may deny, or forward to
the Regional Administrator with a written concur-
rence, or submit to EPA without recommendation
a completed request for:
(1) A variance based on the economic capability
of the applicant under CWA section 301(c); or
(2) A variance based on water quality related
effluent limitations under CWA section 302(b)(2).
(c) The Regional Administrator may deny, for-
ward, or submit to the EPA Office Director for
Water Enforcement and Permits with a rec-
ommendation for approval, a request for a vari-
ance listed in paragraph (b) of this section that is
forwarded by the State Director, or that is submit-
ted to the Regional Administrator by the requester
where EPA is the permitting authority.
(d) The EPA Office Director for Water Enforce-
ment and Permits may approve or deny any vari-
ance request submitted under paragraph (c) of this
section. If the Office Director approves the vari-
ance, the Director may prepare a draft permit in-
corporating the variance. Any public notice of a
draft permit for which a variance or modification
has been approved or denied shall identify the ap-
plicable procedures for appealing that decision
under § 124.64.
(e) The State Director may deny or forward to
the Administrator (or his delegate) with a written
concurrence a completed request for:
(1) A variance based on the presence of "fun-
damentally different factors" from those on which
an effluent limitations guideline was based;
(2) A variance based upon certain water quality
factors under CWA section 301(g).
(f) The Administrator (or his delegate) may
grant or deny a request for a variance listed in
paragraph (e) of this section that is forwarded by
the State Director, or that is submitted to EPA by
the requester where EPA is the permitting author-
ity. If the Administrator (or his delegate) approves
the variance, the State Director or Regional Ad-
ministrator may prepare a draft permit incorporat-
ing the variance. Any public notice of a draft per-
mit for which a variance or modification has been
approved or denied shall identify the applicable
procedures for appealing that decision under
§ 124.64.
[48 FR 14264, Apr. 1, 1983; 50 FR 6941, Feb. 19, 1985,
as amended at 51 FR 16030, Apr. 30, 1986; 54 FR 256,
258, Jan. 4, 1989]
§124.63 Procedures for variances
when EPA is the permitting author-
ity-
(a) In States where EPA is the permit issuing
authority and a request for a variance is filed as
required by § 122.21, the request shall be proc-
essed as follows:
(l)(i) If, at the time, that a request for a vari-
ance based on the presence of fundamentally dif-
ferent factors or on section 301(g) of the CWA is
submitted, the Regional Administrator has re-
ceived an application under § 124.3 for issuance or
renewal of that permit, but has not yet prepared a
draft permit under § 124.6 covering the discharge
in question, the Administrator (or his delegate)
shall give notice of a tentative decision on the re-
quest at the time the notice of the draft permit is
prepared as specified in §124.10, unless this
would significantly delay the processing of the
permit. In that case the processing of the variance
request may be separated from the permit in ac-
cordance with paragraph (a)(3) of this section, and
the processing of the permit shall proceed without
delay.
(ii) If, at the time, that a request for a variance
under sections 301(c) or 302(b)(2) of the CWA is
submitted, the Regional Administrator has re-
ceived an application under § 124.3 for issuance or
renewal of that permit, but has not yet prepared a
draft permit under § 124.6 covering the discharge
in question, the Regional Administrator, after ob-
taining any necessary concurrence of the EPA
Deputy Assistant Administrator for Water Enforce-
ment under § 124.62, shall give notice of a ten-
tative decision on the request at the time the no-
tice of the draft permit is prepared as specified in
§124.10, unless this would significantly delay the
processing of the permit. In that case the process-
ing of the variance request may be separated from
the permit in accordance with paragraph (a)(3) of
this section, and the processing of the permit shall
proceed without delay.
(2) If, at the time that a request for a variance
is filed the Regional Administrator has given no-
tice under § 124.10 of a draft permit covering the
discharge in question, but that permit has not yet
become final, administrative proceedings concern-
ing that permit may be stayed and the Regional
Administrator shall prepare a new draft permit in-
cluding a tentative decision on the request, and the
fact sheet required by § 124.8. However, if this
will significantly delay the processing of the exist-
ing draft permit or the Regional Administrator, for
other reasons, considers combining the variance
request and the existing draft permit inadvisable,
the request may be separated from the permit in
accordance with paragraph (a)(3) of this section,
and the administrative dispositon of the existing
draft permit shall proceed without delay.
24
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§124.66
(3) If the permit has become final and no appli-
cation under § 124.3 concerning it is pending or if
the variance request has been separated from a
draft permit as described in paragraphs (a) (1) and
(2) of this section, the Regional Administrator may
prepare a new draft permit and give notice of it
under §124.10. This draft permit shall be accom-
panied by the fact sheet required by § 124.8 except
that the only matters considered shall relate to the
requested variance.
[48 FR 14264, Apr. 1, 1983, as amended at 51 FR 16030,
Apr. 30, 1986]
§124.64 Appeals of variances.
(a) When a State issues a permit on which EPA
has made a variance decision, separate appeals of
the State permit and of the EPA variance decision
are possible. If the owner or operator is challeng-
ing the same issues in both proceedings, the Re-
gional Administrator will decide, in consultation
with State officials, which case will be heard first.
(b) Variance decisions made by EPA may be
appealed under either subpart E or F, provided the
requirements of the applicable subpart are met.
However, whenever the basic permit decision is
eligible only for an evidentiary hearing under sub-
part E while the variance decision is eligible only
for a panel hearing under subpart F, the issues re-
lating to both the basic permit decision and the
variance decision shall be considered in the sub-
part E proceeding. No subpart F hearing may be
held if a subpart E hearing would be held in addi-
tion. See §124.111(b).
(c) Stays for section 301(g) variances. If a re-
quest for an evidentiary hearing is granted on a
variance requested under CWA section 301(g), or
if a petition for review of the denial of a request
for the hearing is filed under § 124.91, any other-
wise applicable standards and limitations under
CWA section 301 shall not be stayed unless:
(1) In the judgment of the Regional Adminis-
trator, the stay or the variance sought will not re-
sult in the discharge of pollutants in quantities
which may reasonably be anticipated to pose an
unacceptable risk to human health or the environ-
ment because of bioaccumulation, persistency in
the environment, acute toxicity, chronic toxicity,
or synergistic propensities; and
(2) In the judgment of the Regional Adminis-
trator, there is a substantial likelihood that the dis-
charger will succeed on the merits of its appeal;
and
(3) The discharger files a bond or other appro-
priate security which is required by the Regional
Administrator to assure timely compliance with
the requirements from which a variance is sought
in the event that the appeal is unsuccessful.
(d) Stays for variances other than section 301(g)
are governed by § 124.60.
§124.65 [Reserved]
§124.66 Special procedures for deci-
sions on thermal variances under
section 316(a).
(a) Except as provided in § 124.65, the only is-
sues connected with issuance of a particular permit
on which EPA will make a final Agency decision
before the final permit is issued under §§124.15
and 124.60 are whether alternative effluent limita-
tions would be justified under CWA section
316(a) and whether cooling water intake structures
will use the best available technology under sec-
tion 316(b). Permit applicants who wish an early
decision on these issues should request it and fur-
nish supporting reasons at the time their permit
applications are filed under § 122.21. The Regional
Administrator will then decide whether or not to
make an early decision. If it is granted, both the
early decision on CWA section 316 (a) or (b) is-
sues and the grant of the balance of the permit
shall be considered permit issuance under these
regulations, and shall be subject to the same re-
quirements of public notice and comment and the
same opportunity for an evidentiary or panel hear-
ing under subpart E or F.
(b) If the Regional Administrator, on review of
the administrative record, determines that the in-
formation necessary to decide whether or not the
CWA section 316(a) issue is not likely to be avail-
able in time for a decision on permit issuance, the
Regional Administrator may issue a permit under
§124.15 for a term up to 5 years. This permit
shall require achievement of the effluent limita-
tions initially proposed for the thermal component
of the discharge no later than the date otherwise
required by law. However, the permit shall also
afford the permittee an opportunity to file a dem-
onstration under CWA section 316(a) after con-
ducting such studies as are required under 40 CFR
part 125, subpart H. A new discharger may not
exceed the thermal effluent limitation which is ini-
tially proposed unless and until its CWA section
316(a) variance request is finally approved.
(c) Any proceeding held under paragraph (a) of
this section shall be publicly noticed as required
by §124.10 and shall be conducted at a time al-
lowing the permittee to take necessary measures to
meet the final compliance date in the event its re-
quest for modification of thermal limits is denied.
(d) Whenever the Regional Administrator defers
the decision under CWA section 316(a), any deci-
sion under section 316(b) may be deferred.
25
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§124.71
Subpart E—Evidentiary Hearings
for EPA-lssued NPDES Permits
and EPA-Terminated RCRA
Permits
§124.71 Applicability.
(a) The regulations in this subpart govern all
formal hearings conducted by EPA under CWA
sections 402 and 405(f), except those conducted
under subpart F. They also govern all evidentiary
hearings conducted under RCRA section 3008 in
connection with the termination of a RCRA per-
mit. This includes termination of interim status for
failure to furnish information needed to make a
final decision. A formal hearing is available to
challenge any NPDES permit issued under
§124.15 except for a general permit. Persons af-
fected by a general permit may not challenge the
conditions of a general permit as of right in fur-
ther agency proceedings. They may instead either
challenge the general permit in court, or apply for
an individual NPDES permit under § 122.21 as au-
thorized in § 122.28 and then request a formal
hearing on the issuance or denial of an individual
permit. (The Regional Administrator also has the
discretion to use the procedures of subpart F for
general permits. See §124.111).
(b) In certain cases, evidentiary hearings under
this subpart may also be held on the conditions of
UIC permits, or of RCRA permits which are being
issued, modified, or revoked and reissued, rather
than terminated or suspended. This will occur
when the conditions of the UIC or RCRA permit
in question are closely linked with the conditions
of an NPDES permit as to which an evidentiary
hearing has been granted. See § 124.74(b)(2). Any
interested person may challenge the Regional Ad-
ministrator's initial new source determination by
requesting an evidentiary hearing under this part.
See § 122.29.
(c) PSD permits may never be subject to an evi-
dentiary hearing under this subpart. Section
124.74(b)(2)(iv) provides only for consolidation of
PSD permits with other permits subject to a panel
hearing under subpart F.
[48 FR 14264, Apr. 1, 1983, as amended at 54 FR 18786,
May 2, 1989]
§124.72 Definitions.
For the purpose of this subpart, the following
definitions are applicable:
Environmental Appeals Board shall mean the
Board within the Agency described in §1.25 of
this title. The Administrator delegates authority to
the Environmental Appeals Board to issue final
decisions in NPDES appeals filed under this sub-
part. An appeal directed to the Administrator, rath-
er than to the Environmental Appeals Board, will
not be considered. This delegation does not pre-
clude the Environmental Appeals Board from re-
ferring an appeal or a motion to the Administrator
when the Environmental Appeals Board, in its dis-
cretion, deems it appropriate to do so. When an
appeal or motion is referred to the Administrator
by the Environmental Appeals Board, all parties
shall be so notified and the rules in this subpart
referring to the Environmental Appeals Board
shall be interpreted as referring to the Adminis-
trator.
Hearing Clerk means The Hearing Clerk, U.S.
Environmental Protection Agency, 401 M Street,
SW., Washington, DC 20460.
Party means the EPA trial staff under § 124.78
and any person whose request for a hearing under
§ 124.74 or whose request to be admitted as a
party or to intervene under § 124.79 or § 124.117
has been granted.
Presiding Officer for the purposes of this sub-
part means an Administrative Law Judge ap-
pointed under 5 U.S.C. 3105 and designated to
preside at the hearing. Under subpart F other per-
sons may also serve as hearing officers. See
§124.119.
Regional Hearing Clerk means an employee of
the Agency designated by a Regional Adminis-
trator to establish a repository for all books,
records, documents, and other materials relating to
hearings under this subpart.
[48 FR 14264, Apr. 1, 1983, as amended at 57 FR 5335,
Feb. 13, 1992]
§ 124.73 Filing and submission of docu-
ments.
(a) All submissions authorized or required to be
filed with the Agency under this subpart shall be
filed with the Regional Hearing Clerk, unless oth-
erwise provided by regulation. Submissions shall
be considered filed on the date on which they are
mailed or delivered in person to the Regional
Hearing Clerk.
(b) All submissions shall be signed by the per-
son making the submission, or by an attorney or
other authorized agent or representative.
(c)(l) All data and information referred to or in
any way relied upon in any submission shall be
included in full and may not be incorporated by
reference, unless previously submitted as part of
the administrative record in the same proceeding.
This requirement does not apply to State or Fed-
eral statutes and regulations, judicial decisions
published in a national reporter system, officially
issued EPA documents of general applicability,
and any other generally available reference mate-
rial which may be incorporated by reference. Any
party incorporating materials by reference shall
provide copies upon request by the Regional Ad-
ministrator or the Presiding Officer.
26
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§124.74
(2) If any part of the material submitted is in a
foreign language, it shall be accompanied by an
English translation verified under oath to be com-
plete and accurate, together with the name, ad-
dress, and a brief statement of the qualifications of
the person making the translation. Translations of
literature or other material in a foreign language
shall be accompanied by copies of the original
publication.
(3) Where relevant data or information is con-
tained in a document also containing irrelevant
matter, either the irrelevant matter shall be deleted
or the relevant portions shall be indicated.
(4) Failure to comply with the requirements of
this section or any other requirement in this sub-
part may result in the noncomplying portions of
the submission being excluded from consideration.
If the Regional Administrator or the Presiding Of-
ficer, on motion by any party or sua sponte, deter-
mines that a submission fails to meet any require-
ment of this subpart, the Regional Administrator
or Presiding Officer shall direct the Regional
Hearing Clerk to return the submission, together
with a reference to the applicable regulations. A
party whose materials have been rejected has 14
days to correct the errors and resubmit, unless the
Regional Administrator or the Presiding Officer
finds good cause to allow a longer time.
(d) The filing of a submission shall not mean or
imply that it in fact meets all applicable require-
ments or that it contains reasonable grounds for
the action requested or that the action requested is
in accordance with law.
(e) The original of all statements and documents
containing factual material, data, or other informa-
tion shall be signed in ink and shall state the
name, address, and the representative capacity of
the person making the submission.
§124.74 Requests for evidentiary hear-
ing.
(a) Within 30 days following the service of no-
tice of the Regional Administrator's final permit
decision under § 124.15, any interested person may
submit a request to the Regional Administrator
under paragraph (b) of this section for an evi-
dentiary hearing to reconsider or contest that deci-
sion. If such a request is submitted by a person
other than the permittee, the person shall simulta-
neously serve a copy of the request on the permit-
tee.
(b)(l) In accordance with § 124.76, such re-
quests shall state each legal or factual question al-
leged to be at issue, and their relevance to the per-
mit decision, together with a designation of the
specific factual areas to be adjudicated and the
hearing time estimated to be necessary for adju-
dication. Information supporting the request or
other written documents relied upon to support the
request shall be submitted as required by § 124.73
unless they are already part of the administrative
record required by § 124.18.
NOTE: This paragraph allows the submission of re-
quests for evidentiary hearings even though both legal
and factual issues may be raised, or only legal issues may
be raised. In the latter case, because no factual issues
were raised, the Regional Administrator would be re-
quired to deny the request. However, on review of the de-
nial the Environmental Appeals Board is authorized by
§ 124.91(a)(l) to review policy or legal conclusions of the
Regional Administrator. EPA is requiring an appeal to the
Environmental Appeals Board even of purely legal issues
involved in a permit decision to ensure that the Environ-
mental Appeals Board will have an opportunity to review
any permit before it will be final and subject to judicial
review.
(2) Persons requesting an evidentiary hearing on
an NPDES permit under this section may also re-
quest an evidentiary hearing on a RCRA or UIC
permit, PSD permits may never be made part of
an evidentiary hearing under subpart E. This re-
quest is subject to all the requirements of para-
graph (b)(l) of this section and in addition will be
granted only if:
(i) Processing of the RCRA or UIC permit at
issue was consolidated with the processing of the
NPDES permit as provided in § 124.4;
(ii) The standards for granting a hearing on the
NPDES permit are met;
(iii) The resolution of the NPDES permit issues
is likely to make necessary or appropriate modi-
fication of the RCRA or UIC permit; and
(iv) If a PSD permit is involved, a permittee
who is eligible for an evidentiary hearing under
subpart E on his or her NPDES permit requests
that the formal hearing be conducted under the
procedures of subpart F and the Regional Admin-
istrator finds that consolidation is unlikly to delay
final permit issuance beyond the PSD one-year
statutory deadline.
(c) These requests shall also contain:
(1) The name, mailing address, and telephone
number of the person making such request;
(2) A clear and concise factual statement of the
nature and scope of the interest of the requester;
(3) The names and addresses of all persons
whom the requester represents; and
(4) A statement by the requester that, upon mo-
tion of any party granted by the Presiding Officer,
or upon order of the Presiding Officer sua sponte
without cost or expense to any other party, the re-
quester shall make available to appear and testify,
the following:
(i) The requester;
(ii) All persons represented by the requester;
and
(iii) All officers, directors, employees, consult-
ants, and agents of the requester and the persons
represented by the requester.
27
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§124.75
(5) Specific references to the contested permit
conditions, as well as suggested revised or alter-
native permit conditions (including permit denials)
which, in the judgment of the requester, would be
required to implement the purposes and policies of
the CWA.
(6) In the case of challenges to the application
of control or treatment technologies identified in
the statement of basis or fact sheet, identification
of the basis for the objection, and the alternative
technologies or combination of technologies which
the requester believes are necessary to meet the re-
quirements of the CWA.
(7) Identification of the permit obligations that
are contested or are inseverable from contested
conditions and should be stayed if the request is
granted by reference to the particular contested
conditions warranting the stay.
(8) Hearing requests also may ask that a formal
hearing be held under the procedures set forth in
subpart F. An applicant may make such a request
even if the proceeding does not constitute "initial
licensing" as defined in §124.111.
(d) If the Regional Administrator grants an evi-
dentiary hearing request, in whole or in part, the
Regional Administrator shall identify the permit
conditions which have been contested by the re-
quester and for which the evidentiary hearing has
been granted. Permit conditions which are not con-
tested or for which the Regional Administrator has
denied the hearing request shall not be affected by,
or considered at, the evidentiary hearing. The Re-
gional Administrator shall specify these conditions
in writing in accordance with § 124.60(c).
(e) The Regional Administrator must grant or
deny all requests for an evidentiary hearing on a
particular permit. All requests that are granted for
a particular permit shall be combined in a single
evidentiary hearing.
(f) The Regional Administrator (upon notice to
all persons who have already submitted hearing re-
quests) may extend the time allowed for submit-
ting hearing requests under this section for good
cause.
[48 FR 14264, Apr. 1, 1983, as amended at 57 FR 5336,
Feb. 13, 1992]
§124.75 Decision on request for a
hearing.
(a)(l) Within 30 days following the expiration
of the time allowed by § 124.74 for submitting an
evidentiary hearing request, the Regional Adminis-
trator shall decide the extent to which, if at all, the
request shall be granted, provided that the request
conforms to the requirements of § 124.74, and sets
forth material issues of fact relevant to the issu-
ance of the permit.
(2) When an NPDES permit for which a hearing
request has been granted constitutes "initial li-
censing" under §124.111, the Regional Adminis-
trator may elect to hold a formal hearing under the
procedures of subpart F rather than under the pro-
cedures of this subpart even if no person has re-
quested that subpart F be applied. If the Regional
Administrator makes such a decision, he or she
shall issue a notice of hearing under § 124.116. All
subsequent proceedings shall then be governed by
§§124.117 through 124.121, except that any ref-
erence to a draft permit shall mean the final per-
mit.
(3) Whenever the Regional Administrator grants
a request made under § 124.74(c)(8) for a formal
hearing under subpart F on an NPDES permit that
does not constitute an initial license under
§124.111, the Regional Administrator shall issue a
notice of hearing under §124.116 including a
statement that the permit will be processed under
the procedures of subpart F unless a written objec-
tion is received within 30 days. If no valid objec-
tion is received, the application shall be processed
in accordance with §§124.117 through 124.121,
except that any reference to a draft permit shall
mean the final permit. If a valid objection is re-
ceived, this subpart shall be applied instead.
(b) If a request for a hearing is denied in whole
or in part, the Regional Administrator shall briefly
state the reasons. That denial is subject to review
by the Environmental Appeals Board under
§124.91.
[48 FR 14264, Apr. 1, 1983, as amended at 57 FR 5336,
Feb. 13, 1992]
§124.76 Obligation to submit evidence
and raise issues before a final per-
mit is issued.
In any case where the Regional Administrator
elected to apply the requirements of §124.14(a),
no evidence shall be submitted by any party to a
hearing under this Subpart that was not submitted
to the administrative record required by §124.18
as part of the preparation of and comment on a
draft permit, unless good cause is shown for the
failure to submit it. No issues shall be raised by
any party that were not submitted to the adminis-
trative record required by §124.18 as part of the
preparation of and comment on a draft permit un-
less good cause is shown for the failure to submit
them. Good cause includes the case where the
party seeking to raise the new issues or introduce
new information shows that it could not reason-
ably have ascertained the issues or made the infor-
mation available within the time required by
§124.15; or that it could not have reasonably an-
ticipated the relevance or materiality of the infor-
mation sought to be introduced. Good cause exists
28
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§124.79
for the introduction of data available on operation
authorized under § 124.60(a)(2).
[49 FR 38051, Sept. 26, 1984]
§ 124.77 Notice of hearing.
Public notice of the grant of an evidentiary
hearing regarding a permit shall be given as pro-
vided in § 124.57(b) and by mailing a copy to all
persons who commented on the draft permit, testi-
fied at the public hearing, or submitted a request
for a hearing. Before the issuance of the notice,
the Regional Administrator shall designate the
Agency trial staff and the members of the
decisional body (as defined in § 124.78).
§ 124.78 Ex parte communications.
(a) For purposes of this section, the following
definitions shall apply:
(1) Agency trial staff means those Agency em-
ployees, whether temporary or permanent, who
have been designated by the Agency under
§124.77 or §124.116 as available to investigate,
litigate, and present the evidence, arguments, and
position of the Agency in the evidentiary hearing
or nonadversary panel hearing. Any EPA em-
ployee, consultant, or contractor who is called as
a witness by EPA trial staff, or who assisted in the
formulation of the draft permit which is the sub-
ject of the hearing, shall be designated as a mem-
ber of the Agency trial staff;
(2) Decisional body means any Agency em-
ployee who is or may reasonably be expected to
be involved in the decisional process of the pro-
ceeding including the Administrator, the members
of the Environmental Appeals Board, the Presiding
Officer, the Regional Administrator (if he or she
does not designate himself or herself as a member
of the Agency trial staff), and any of their staff
participating in the decisional process. In the case
of a nonadversary panel hearing, the decisional
body shall also include the panel members, wheth-
er or not permanently employed by the Agency;
(3) Ex parte communication means any commu-
nication, written or oral, relating to the merits of
the proceeding between the decisional body and an
interested person outside the Agency or the Agen-
cy trial staff which was not originally filed or stat-
ed in the administrative record or in the hearing.
Ex parte communications do not include:
(i) Communications between Agency employees
other than between the Agency trial staff and the
members of the decisional body;
(ii) Discussions between the decisional body and
either:
(A) Interested persons outside the Agency, or
(B) The Agency trial staff, ;/ all parties have re-
ceived prior written notice of the proposed com-
munications and have been given the opportunity
to be present and participate therein.
(4) Interested person outside the Agency in-
cludes the permit applicant, any person who filed
written comments in the proceeding, any person
who requested the hearing, any person who re-
quested to participate or intervene in the hearing,
any participant in the hearing and any other inter-
ested person not employed by the Agency at the
time of the communications, and any attorney of
record for those persons.
(b)(l) No interested person outside the Agency
or member of the Agency trial staff shall make or
knowingly cause to be made to any members of
the decisional body, an ex parte communication on
the merits of the proceedings.
(2) No member of the decisional body shall
make or knowingly cause to be made to any inter-
ested person outside the Agency or member of the
Agency trial staff, an ex parte communication on
the merits of the proceedings.
(3) A member of the decisional body who re-
ceives or who makes or who knowingly causes to
be made a communication prohibited by this sub-
section shall file with the Regional Hearing Clerk
all written communications or memoranda stating
the substance of all oral communications together
with all written responses and memoranda stating
the substance of all oral responses.
(c) Whenever any member of the decisionmak-
ing body receives an ex parte communication
knowingly made or knowingly caused to be made
by a party or representative of a party in violation
of this section, the person presiding at the stage of
the hearing then in progress may, to the extent
consistent with justice and the policy of the CWA,
require the party to show cause why its claim or
interest in the proceedings should not be dis-
missed, denied, disregarded, or otherwise ad-
versely affected on account of such violation.
(d) The prohibitions of this section begin to
apply upon issuance of the notice of the grant of
a hearing under § 124.77 or § 124.116. This prohi-
bition terminates at the date of final agency action.
[48 FR 14264, Apr. 1, 1983, as amended at 49 FR 38052,
Sept. 26, 1984; 57 FR 5336, Feb. 13, 1992]
§ 124.79 Additional parties and issues.
(a) Any person may submit a request to be ad-
mitted as a party within 15 days after the date of
mailing, publication, or posting of notice of the
grant of an evidentiary hearing, whichever occurs
last. The Presiding Officer shall grant requests that
meet the requirements of §§ 124.74 and 124.76.
(b) After the expiration of the time prescribed
in paragraph (a) of this section any person may
file a motion for leave to intervene as a party.
This motion must meet the requirements of
§§ 124.74 and 124.76 and set forth the grounds for
29
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§124.80
the proposed intervention. No factual or legal is-
sues, besides those raised by timely hearing re-
quests, may be proposed except for good cause. A
motion for leave to intervene must also contain a
verified statement showing good cause for the fail-
ure to file a timely request to be admitted as a
party. The Presiding Officer shall grant the motion
only upon an express finding on the record that:
(1) Extraordinary circumstances justify granting
the motion;
(2) The intervener has consented to be bound
by:
(i) Prior written agreements and stipulations by
and between the existing parties; and
(ii) All orders previously entered in the proceed-
ings; and
(3) Intervention will not cause undue delay or
prejudice the rights of the existing parties.
§124.80 Filing and service.
(a) An original and one (1) copy of all written
submissions relating to an evidentiary hearing filed
after the notice is published shall be filed with the
Regional Hearing Clerk.
(b) The party filing any submission shall also
serve a copy of each submission upon the Presid-
ing Officer and each party of record. Service shall
be by mail or personal delivery.
(c) Every submission shall be accompanied by
an acknowledgment of service by the person
served or a certificate of service citing the date,
place, time, and manner of service and the names
of the persons served.
(d) The Regional Hearing Clerk shall maintain
and furnish a list containing the name, service ad-
dress, and telephone number of all parties and
their attorneys or duly authorized representatives
to any person upon request.
§124.81 Assignment of Administrative
Law Judge.
No later than the date of mailing, publication, or
posting of the notice of a grant of an evidentiary
hearing, whichever occurs last, the Regional Ad-
ministrator shall refer the proceeding to the Chief
Administrative Law Judge who shall assign an
Administrative Law Judge to serve as Presiding
Officer for the hearing.
§ 124.82 Consolidation and severance.
(a) The Administrator, Regional Administrator,
or Presiding Officer has the discretion to consoli-
date, in whole or in part, two or more proceedings
to be held under this subpart, whenever it appears
that a joint hearing on any or all of the matters in
issue would expedite or simplify consideration of
the issues and that no party would be prejudiced
thereby. Consolidation shall not affect the right of
any party to raise issues that might have been
raised had there been no consolidation.
(b) If the Presiding Officer determines consoli-
dation is not conducive to an expeditious, full, and
fair hearing, any party or issues may be severed
and heard in a separate proceeding.
§124.83 Prehearing conferences.
(a) The Presiding Officer, sua sponte, or at the
request of any party, may direct the parties or their
attorneys or duly authorized representatives to ap-
pear at a specified time and place for one or more
conferences before or during a hearing, or to sub-
mit written proposals or correspond for the pur-
pose of considering any of the matters set forth in
paragraph (c) of this section.
(b) The Presiding Officer shall allow a reason-
able period before the hearing begins for the or-
derly completion of all prehearing procedures and
for the submission and disposition of all prehear-
ing motions. Where the circumstances warrant, the
Presiding Officer may call a prehearing conference
to inquire into the use of available procedures con-
templated by the parties and the time required for
their completion, to establish a schedule for their
completion, and to set a tentative date for begin-
ning the hearing.
(c) In conferences held, or in suggestions sub-
mitted, under paragraph (a) of this section, the fol-
lowing matter may be considered:
(1) Simplification, clarification, amplification, or
limitation of the issues.
(2) Admission of facts and of the genuineness
of documents, and stipulations of facts.
(3) Objections to the introduction into evidence
at the hearing of any written testimony, docu-
ments, papers, exhibits, or other submissions pro-
posed by a party, except that the administrative
record required by §124.19 shall be received in
evidence subject to the provisions of
§ 124.85(d)(2). At any time before the end of the
hearing any party may make, and the Presiding
Officer shall consider and rule upon, motions to
strike testimony or other evidence other than the
administrative record on the grounds of relevance,
competency, or materiality.
(4) Matters subject to official notice may be
taken.
(5) Scheduling as many of the following as are
deemed necessary and proper by the Presiding Of-
ficer:
(i) Submission of narrative statements of posi-
tion on each factual issue in controversy;
(ii) Submission of written testimony and docu-
mentary evidence (e.g., affidavits, data, studies, re-
ports, and any other type of written material) in
support of those statements; or
30
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§124.85
(iii) Requests by any party for the production of
additional documentation, data, or other informa-
tion relevant and material to the facts in issue.
(6) Grouping participants with substantially
similar interests to eliminate redundant evidence,
motions, and objections.
(7) Such other matters that may expedite the
hearing or aid in the disposition of the matter.
(d) At a prehearing conference or at some other
reasonable time set by the Presiding Officer, each
party shall make available to all other parties the
names of the expert and other witnesses it expects
to call. At its discretion or at the request of the
Presiding Officer, a party may include a brief nar-
rative summary of any witness's anticipated testi-
mony. Copies of any written testimony, docu-
ments, papers, exhibits, or materials which a party
expects to introduce into evidence, and the admin-
istrative record required by §124.18 shall be
marked for identification as ordered by the Presid-
ing Officer. Witnesses, proposed written testi-
mony, and other evidence may be added or
amended upon order of the Presiding Officer for
good cause shown. Agency employees and con-
sultants shall be made available as witnesses by
the Agency to the same extent that production of
such witnesses is required of other parties under
§ 124.74(c)(4). (See also § 124.85(b)(16).)
(e) The Presiding Officer shall prepare a written
prehearing order reciting the actions taken at each
prehearing conference and setting forth the sched-
ule for the hearing, unless a transcript has been
taken and accurately reflects these matters. The
order shall include a written statement of the areas
of factual agreement and disagreement and of the
methods and procedures to be used in developing
the evidence and the respective duties of the par-
ties in connection therewith. This order shall con-
trol the subsequent course of the hearing unless
modified by the Presiding Officer for good cause
shown.
§124.84 Summary determination.
(a) Any party to an evidentiary hearing may
move with or without supporting affidavits and
briefs for a summary determination in its favor
upon any of the issues being adjudicated on the
basis that there is no genuine issue of material fact
for determination. This motion shall be filed at
least 45 days before the date set for the hearing,
except that upon good cause shown the motion
may be filed at any time before the close of the
hearing.
(b) Any other party may, within 30 days after
service of the motion, file and serve a response to
it or a countermotion for summary determination.
When a motion for summary determination is
made and supported, a party opposing the motion
may not rest upon mere allegations or denials but
must show, by affidavit or by other materials sub-
ject to consideration by the Presiding Officer, that
there is a genuine issue of material fact for deter-
mination at the hearing.
(c) Affidavits shall be made on personal knowl-
edge, shall set forth facts that would be admissible
in evidence, and shall show affirmatively that the
affiant is competent to testify to the matters stated
therein.
(d) The Presiding Officer may set the matter for
oral argument and call for the submission of pro-
posed findings, conclusions, briefs, or memoranda
of law. The Presiding Officer shall rule on the mo-
tion not more than 30 days after the date re-
sponses to the motion are filed under paragraph
(b) of this section.
(e) If all factual issues are decided by summary
determination, no hearing will be held and the Pre-
siding Officer shall prepare an initial decision
under § 124.89. If summary determination is de-
nied or if partial summary determination is grant-
ed, the Presiding Officer shall issue a memoran-
dum opinion and order, interlocutory in character,
and the hearing will proceed on the remaining is-
sues. Appeals from interlocutory rulings are gov-
erned by § 124.90.
(f) Should it appear from the affidavits of a
party opposing a motion for summary determina-
tion that he or she cannot for reasons stated
present, by affidavit or otherwise, facts essential to
justify his or her opposition, the Presiding Officer
may deny the motion or order a continuance to
allow additional affidavits or other information to
be obtained or may make such other order as is
just and proper.
§ 124.85 Hearing procedure.
(a)(l) The permit applicant always bears the
burden of persuading the Agency that a permit au-
thorizing pollutants to be discharged should be is-
sued and not denied. This burden does not shift.
NOTE: In many cases the documents contained in the
administrative record, in particular the fact sheet or state-
ment of basis and the response to comments, should ade-
quately discharge this burden.
(2) The Agency has the burden of going for-
ward to present an affirmative case in support of
any challenged condition of a final permit.
(3) Any hearing participant who, by raising ma-
terial issues of fact, contends:
(i) That particular conditions or requirements in
the permit are improper or invalid, and who de-
sires either:
(A) The inclusion of new or different conditions
or requirements; or
(B) The deletion of those conditions or require-
ments; or
(ii) That the denial or issuance of a permit is
otherwise improper or invalid, shall have the bur-
31
-------
§124.85
den of going forward to present an affirmative
case at the conclusion of the Agency case on the
challenged requirement.
(b) The Presiding Officer shall conduct a fair
and impartial hearing, take action to avoid unnec-
essary delay in the disposition of the proceedings,
and maintain order. For these purposes, the Presid-
ing Officer may:
(1) Arrange and issue notice of the date, time,
and place of hearings and conferences;
(2) Establish the methods and procedures to be
used in the development of the evidence;
(3) Prepare, after considering the views of the
participants, written statements of areas of factual
disagreement among the participants;
(4) Hold conferences to settle, simplify, deter-
mine, or strike any of the issues in a hearing, or
to consider other matters that may facilitate the
expeditious disposition of the hearing;
(5) Administer oaths and affirmations;
(6) Regulate the course of the hearing and gov-
ern the conduct of participants;
(7) Examine witnesses;
(8) Identify and refer issues for interlocutory de-
cision under § 124.90;
(9) Rule on, admit, exclude, or limit evidence;
(10) Establish the time for filing motions, testi-
mony, and other written evidence, briefs, findings,
and other submissions;
(11) Rule on motions and other procedural mat-
ters pending before him, including but not limited
to motions for summary determination in accord-
ance with §124.84;
(12) Order that the hearing be conducted in
stages whenever the number of parties is large or
the issues are numerous and complex;
(13) Take any action not inconsistent with the
provisions of this subpart for the maintenance of
order at the hearing and for the expeditious, fair,
and impartial conduct of the proceeding;
(14) Provide for the testimony of opposing wit-
nesses to be heard simultaneously or for such wit-
nesses to meet outside the hearing to resolve or
isolate issues or conflicts;
(15) Order that trade secrets be treated as con-
fidential business information in accordance with
§§122.7 (NPDES) and 270.12 (RCRA) and 40
CFR part 2; and
(16) Allow such cross-examination as may be
required for a full and true disclosure of the facts.
No cross-examination shall be allowed on ques-
tions of policy except to the extent required to dis-
close the factual basis for permit requirements, or
on questions of law, or regarding matters (such as
the validity of effluent limitations guidelines) that
are not subject to challenge in an evidentiary hear-
ing. No Agency witnesses shall be required to tes-
tify or be made available for cross-examination on
such matters. In deciding whether or not to allow
cross-examination, the Presiding Officer shall con-
sider the likelihood of clarifying or resolving a
disputed issue of material fact compared to other
available methods. The party seeking cross-exam-
ination has the burden of demonstrating that this
standard has been met.
(c) All direct and rebuttal evidence at an evi-
dentiary hearing shall be submitted in written
form, unless, upon motion and good cause shown,
the Presiding Officer determines that oral presen-
tation of the evidence on any particular fact will
materially assist in the efficient identification and
clarification of the issues. Written testimony shall
be prepared in narrative form.
(d)(l) The Presiding Officer shall admit all rel-
evant, competent, and material evidence, except
evidence that is unduly repetitious. Evidence may
be received at any hearing even though inadmis-
sible under the rules of evidence applicable to ju-
dicial proceedings. The weight to be given evi-
dence shall be determined by its reliability and
probative value.
(2) The administrative record required by
§124.18 shall be admitted and received in evi-
dence. Upon motion by any party the Presiding
Officer may direct that a witness be provided to
sponsor a portion or portions of the administrative
record. The Presiding Officer, upon finding that
the standards in § 124.85(b)(3) have been met,
shall direct the appropriate party to produce the
witness for cross-examination. If a sponsoring wit-
ness cannot be provided, the Presiding Officer
may reduce the weight accorded the appropriate
portion of the record.
NOTE: Receiving the administrative record into evi-
dence automatically serves several purposes: (1) It docu-
ments the prior course of the proceedings; (2) it provides
a record of the views of affected persons for consideration
by the agency decisionmaker; and (3) it provides factual
material for use by the decisionmaker.
(3) Whenever any evidence or testimony is ex-
cluded by the Presiding Officer as inadmissible, all
such evidence or testimony existing in written
form shall remain a part of the record as an offer
of proof. The party seeking the admission of oral
testimony may make an offer of proof, by means
of a brief statement on the record describing the
testimony excluded.
(4) When two or more parties have substantially
similar interests and positions, the Presiding Offi-
cer may limit the number of attorneys or other
party representatives who will be permitted to
cross-examine and to make and argue motions and
objections on behalf of those parties. Attorneys
may, however, engage in cross-examination rel-
evant to matters not adequately covered by pre-
vious cross-examination.
(5) Rulings of the Presiding Officer on the ad-
missibility of evidence or testimony, the propriety
32
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§124.89
of cross-examination, and other procedural matters
shall appear in the record and shall control further
proceedings, unless reversed as a result of an in-
terlocutory appeal taken under § 124.90.
(6) All objections shall be made promptly or be
deemed waived. Parties shall be presumed to have
taken exception to an adverse ruling. No objection
shall be deemed waived by further participation in
the hearing.
(e) Admission of evidence on environmental im-
pacts. If a hearing is granted under this subpart for
a new source subject to NEPA, the Presiding Offi-
cer may admit evidence relevant to any environ-
mental impacts of the permitted facility if the evi-
dence would be relevant to the Agency's obliga-
tion under § 122.29(c)(3). If the source holds a
final EPA-issued RCRA, PSD, or UIC permit, or
an ocean dumping permit under the Marine Pro-
tection, Research, and Sanctuaries Act (MPRSA),
no such evidence shall be admitted nor shall cross-
examination be allowed relating to:
(1) Effects on air quality, (2) effects attributable
to underground injection or hazardous waste man-
agement practices, or (3) effects of ocean dumping
subject to the MPRSA, which were considered or
could have been considered in the PSD, RCRA,
UIC, or MPRSA permit issuance proceedings.
However, the presiding officer may admit without
cross-examination or any supporting witness rel-
evant portions of the record of PSD, RCRA, UIC,
or MPRSA permit issuance proceedings.
[48 FR 14264, Apr. 1, 1983, as amended at 49 FR 38052,
Sept. 26, 1984]
§124.86 Motions.
(a) Any party may file a motion (including a
motion to dismiss a particular claim on a contested
issue) with the Presiding Officer on any matter re-
lating to the proceeding. All motions shall be in
writing and served as provided in § 124.80 except
those made on the record during an oral hearing
before the Presiding Officer.
(b) Within 10 days after service of any written
motion, any part to the proceeding may file a re-
sponse to the motion. The time for response may
be shortened to 3 days or extended for an addi-
tional 10 days by the Presiding Officer for good
cause shown.
(c) Notwithstanding § 122.4, any party may file
with the Presiding Officer a motion seeking to
apply to the permit any regulatory or statutory
provision issued or made available after the issu-
ance of the permit under §124.15. The Presiding
Officer shall grant any motion to apply a new stat-
utory provision unless he or she finds it contrary
to legislative intent. The Presiding Officer may
grant a motion to apply a new regulatory require-
ment when appropriate to carry out the purpose of
CWA, and when no party would be unduly preju-
diced thereby.
§124.87 Record of hearings.
(a) All orders issued by the Presiding Officer,
transcripts of oral hearings or arguments, written
statements of position, written direct and rebuttal
testimony, and any other data, studies, reports,
documentation, information and other written ma-
terial of any kind submitted in the proceeding
shall be a part of the hearing record and shall be
available to the public except as provided in
§§ 122.7 (NPDES) and 270.12 (RCRA), in the Of-
fice of the Regional Hearing Clerk, as soon as it
is received in that office.
(b) Evidentiary hearings shall be either steno-
graphically reported verbatim or tape recorded,
and thereupon transcribed. After the hearing, the
reporter shall certify and file with the Regional
Hearing Clerk:
(1) The original of the transcript, and
(2) The exhibits received or offered into evi-
dence at the hearing.
(c) The Regional Hearing Clerk shall promptly
notify each of the parties of the filing of the cer-
tified transcript of proceedings. Any party who de-
sires a copy of the transcript of the hearing may
obtain a copy of the hearing transcript from the
Regional Hearing Clerk upon payment of costs.
(d) The Presiding Officer shall allow witnesses,
parties, and their counsel an opportunity to submit
such written proposed corrections of the transcript
of any oral testimony taken at the hearing, point-
ing out errors that may have been made in tran-
scribing the testimony, as are required to make the
transcript conform to the testimony. Except in un-
usual cases, no more than 30 days shall be al-
lowed for submitting such corrections from the
day a complete transcript of the hearing becomes
available.
§124.88 Proposed findings of fact and
conclusions; brief.
Within 45 days after the certified transcript is
filed, any party may file with the Regional Hear-
ing Clerk proposed findings of fact and conclu-
sions of law and a brief in support thereof. Briefs
shall contain appropriate references to the record.
A copy of these findings, conclusions, and brief
shall be served upon all the other parties and the
Presiding Officer. The Presiding Officer, for good
cause shown, may extend the time for filing the
proposed findings and conclusions and/or the brief.
The Presiding Officer may allow reply briefs.
§124.89 Decisions.
(a) The Presiding Officer shall review and
evaluate the record, including the proposed find-
ings and conclusions, any briefs filed by the par-
33
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§124.90
ties, and any interlocutory decisions under
§ 124.90 and shall issue and file his initial decision
with the Regional Hearing Clerk. The Regional
Hearing Clerk shall immediately serve copies of
the initial decision upon all parties (or their coun-
sel of record) and the Administrator.
(b) The initial decision of the Presiding Officer
shall automatically become the final decision 30
days after its service unless within that time:
(1) A party files a petition for review by the
Environmental Appeals Board pursuant to
§124.91; or
(2) The Environmental Appeals Board sua
sponte files a notice that it will review the deci-
sion pursuant to § 124.91.
[48 FR 14264, Apr. 1, 1983, as amended at 57 FR 5336,
Feb. 13, 1992]
§124.90 Interlocutory appeal.
(a) Except as provided in this section, appeals
to the Environmental Appeals Board may be taken
only under § 124.91. Appeals from orders or rul-
ings may be taken under this section only if the
Presiding Officer, upon motion of a party, certifies
those orders or rulings to the Environmental Ap-
peals Board for appeal on the record. Requests to
the Presiding Officer for certification must be filed
in writing within 10 days of service of notice of
the order, ruling, or decision and shall state briefly
the grounds relied on.
(b) The Presiding Officer may certify an order
or ruling for appeal to the Environmental Appeals
Board if:
(1) The order or ruling involves an important
question on which there is substantial ground for
difference of opinion, and
(2) Either: (i) An immediate appeal of the order
or ruling will materially advance the ultimate com-
pletion of the proceeding; or
(ii) A review after the final order is issued will
be inadequate or ineffective.
(c) If the Environmental Appeals Board decides
that certification was improperly granted, it shall
decline to hear the appeal. The Environmental Ap-
peals Board shall accept or decline all interlocu-
tory appeals within 30 days of their submission; if
the Environmental Appeals Board takes no action
within that time, the appeal shall be automatically
dismissed. When the Presiding Officer declines to
certify an order or ruling to the Environmental
Appeals Board for an interlocutory appeal, it may
be reviewed by the Environmental Appeals Board
only upon appeal from the initial decision of the
Presiding Officer, except when the Environmental
Appeals Board determines, upon motion of a party
and in exceptional circumstances, that to delay re-
view would not be in the public interest. Such mo-
tion shall be made within 5 days after receipt of
notification that the Presiding Officer has refused
to certify an order or ruling for interlocutory ap-
peal to the Environmental Appeals Board. Ordi-
narily, the interlocutory appeal will be decided on
the basis of the submissions made to the Presiding
Officer. The Environmental Appeals Board may,
however, allow briefs and oral argument.
(d) In exceptional circumstances, the Presiding
Officer may stay the proceeding pending a deci-
sion by the Environmental Appeals Board upon an
order or ruling certified by the Presiding Officer
for an interlocutory appeal, or upon the denial of
such certification by the Presiding Officer.
(e) The failure to request an interlocutory appeal
shall not prevent taking exception to an order or
ruling in an appeal under § 124.91.
[48 FR 14264, Apr. 1, 1983, as amended at 57 FR 5336,
Feb. 13, 1992]
§ 124.91 Appeal to the Administrator.
(a)(l) Within 30 days after service of an initial
decision, or a denial in whole or in part of a re-
quest for an evidentiary hearing, any party or re-
quester, as the case may be, may appeal any mat-
ter set forth in the initial decision or denial, or any
adverse order or ruling to which the party objected
during the hearing, by filing with the Environ-
mental Appeals Board notice of appeal and peti-
tion for review. The petition shall include a state-
ment of the supporting reasons and, when appro-
priate, a showing that the initial decision contains:
(i) A finding of fact or conclusion of law which
is clearly erroneous, or
(ii) An exercise of discretion or policy which is
important and which the Environmental Appeals
Board should review.
(2) Within 15 days after service of a petition for
review under paragraph (c)(l) of this section, any
other party to the proceeding may file a responsive
petition.
(3) Policy decisions made or legal conclusions
drawn in the course of denying a request for an
evidentiary hearing may be reviewed and changed
by the Environmental Appeals Board in an appeal
under this section.
(b) Within 30 days of an initial decision or de-
nial of a request for an evidentiary hearing, the
Environmental Appeals Board may, sua sponte, re-
view such decision. Within 7 days after the Envi-
ronmental Appeals Board has decided under this
section to review an initial decision or the denial
of a request for an evidentiary hearing, notice of
that decision shall be served by mail upon all af-
fected parties and the Regional Administrator.
(c)(l) Within a reasonable time following the
filing of the petition for review, the Environmental
Appeals Board shall issue an order either granting
or denying the petition for review. When the Envi-
ronmental Appeals Board grants a petition for re-
view or determines under paragraph (b) of this
34
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§124.111
section to review a decision, the Environmental
Appeals Board may notify the parties that only
certain issues shall be briefed.
(2) Upon granting a petition for review, the Re-
gional Hearing Clerk shall promptly forward a
copy of the record to the Environmental Appeals
Board and shall retain a complete duplicate copy
of the record in the Regional Office.
(d) Notwithstanding the grant of a petition for
review or a determination under paragraph (b) of
this section to review a decision, the Environ-
mental Appeals Board may summarily affirm
without opinion an initial decision or the denial of
a request for an evidentiary hearing.
(e) A petition to the Environmental Appeals
Board under paragraph (a) of this section for re-
view of any initial decision or the denial of an
evidentiary hearing is, under 5 U.S.C. 704, a pre-
requisite to the seeking of judicial review of the
final decision of the Agency.
(f) If a party timely files a petition for review
or if the Environmental Appeals Board sua sponte
orders review, then, for purposes of judicial re-
view, final Agency action on an issue occurs as
follows:
(1) If the Environmental Appeals Board denies
review or summarily affirms without opinion as
provided in § 124.91(d), then the initial decision or
denial becomes the final Agency action and occurs
upon the service of notice of the Environmental
Appeals Board's action.
(2) If the Environmental Appeals Board issues
a decision without remanding the proceeding then
the final permit, redrafted as required by the Envi-
ronmental Appeals Board's original decision, shall
be reissued and served upon all parties to the ap-
peal.
(3) If the Environmental Appeals Board issues
a decision remanding the proceeding, then final
Agency action occurs upon completion of the re-
manded proceeding, inlcuding any appeals to the
Environmental Appeals Board from the results of
the remanded proceeding.
(g) The petitioner may file a brief in support of
the petition within 21 days after the Environmental
Appeals Board has granted a petition for review.
Any other party may file a responsive brief within
21 days of service of the petitioner's brief. The
petitioner then may file a reply brief within 14
days of service of the responsive brief. Any person
may file an amicus brief for the consideration of
the Environmental Appeals Board within the same
time periods that govern reply briefs. If the Envi-
ronmental Appeals Board determines, sua sponte,
to review an initial Regional Administrator's deci-
sion or the denial of a request for an evidentiary
hearing, the Environmental Appeals Board shall
notify the parties of the schedule for filing briefs.
(h) Review by the Environmental Appeals
Board of an initial decision or the denial of an
evidentiary hearing shall be limited to the issues
specified under paragraph (a) of this section, ex-
cept that after notice to all the parties, the Envi-
ronmental Appeals Board may raise and decide
other matters which it considers material on the
basis of the record.
(i) Motions to reconsider a final order shall be
filed within ten (10) days after service of the final
order. Every such motion must set forth the mat-
ters claimed to have been erroneously decided and
the nature of the alleged errors. Motions for recon-
sideration under this provision shall be directed to,
and decided by, the Environmental Appeals Board.
Motions for reconsideration directed to the Admin-
istrator, rather than to the Environmental Appeals
Board, will not be considered, except in cases that
the Environmental Appeals Board has referred to
the Administrator pursuant to § 124.72 and in
which the Administrator has issued the final order.
A motion for reconsideration shall not stay the ef-
fective date of the final order unless specifically
so ordered by the Environmental Appeals Board.
[48 FR 14264, Apr. 1, 1983, as amended at 57 FR 5336,
Feb. 13, 1992]
Subpart F—Non-Adversary Panel
Procedures
§124.111 Applicability.
(a) Except as set forth in this subpart, this sub-
part applies in lieu of, and to complete exclusion
of, subparts A through E in the following cases:
(l)(i) In any proceedings for the issuance of any
NPDES permit under CWA sections 402 and
405(f) which constitute "initial licensing" under
the Administrative Procedure Act, when the Re-
gional Administrator elects to apply this subpart
and explicitly so states in the public notice of the
draft permit under §124.10 or in a supplemental
notice under §124.14. If an NPDES draft permit
is processed under this subpart, any other draft
permits which have been consolidated with the
NPDES draft permit under § 124.4 shall likewise
be processed under this subpart, except for PSD
permits when the Regional Administrator makes a
finding under § 124.4(e) that consolidation would
be likely to result in missing the one year statutory
deadline for issuing a final PSD permit under the
CAA.
(ii) "Initial licensing" includes both the first
decision on an NPDES permit applied for by a
discharger that has not previously held one and the
first decision on any variance requested by a dis-
charger.
(iii) To the extent this subpart is used to process
a request for a variance under CWA section
35
-------
§124.112
301(h), the term "Administrator or a person des-
ignated by the Administrator" shall be substituted
for the term "Regional Administrator".
(2) In any proceeding for which a hearing under
this subpart was granted under § 124.75 following
a request for a formal hearing under § 124.74. See
§§ 124.74(c)(8) and 124.75(a)(2).
(3) Whenever the Regional Administrator deter-
mines as a matter of discretion that the more for-
malized mechanisms of this subpart should be
used to process draft NPDES general permits (for
which evidentiary hearings are unavailable under
§ 124.71), or draft RCRA or draft UIC permits.
(b) EPA shall not apply these procedures to a
decision on a variance where subpart E proceed-
ings are simultaneously pending on the other con-
ditions of the permit. See § 124.64(b).
[48 FR 14264, Apr. 1, 1983, as amended at 54 FR 18786,
May 2, 1989]
§124.112 Relation to other subparts.
The following provisions of subparts A through
E apply to proceedings under this subpart:
(a)(l) Sections 124.1 through 124.10.
(2) Section 124.14 "Reopening of comment pe-
riod."
(3) Section 124.16 "Stays of contested permit
conditions."
(4) Section 124.20 "Computation of time."
(b)(l) Section 124.41 "Definitions applicable to
PSD Permits."
(2) Section 124.42 "Additional procedures for
PSD permits affecting Class I Areas."
(c)(l) Sections 124.51 through 124.56.
(2) Section 124.57(c) "Public notice."
(3) Sections 124.58 through 124.66.
(d)(l) Section 124.72 "Definitions," except for
the definition of "Presiding Officer," see section
124.119.
(2) Section 124.73 "Filing."
(3) Section 124.78 "Exparte communications."
(4) Section 124.80 "Filing and service."
(5) Section 124.85(a) (Burden of proof).
(6) Section 124.86 "Motions."
(7) Section 124.87 "Record of hearings."
(8) Section 124.90 "Interlocutory appeal."
(e) In the case of permits to which this subpart
is made applicable after a final permit has been is-
sued under §124.15, either by the grant under
§ 124.75 of a hearing request under § 124.74, or by
notice of supplemental proceedings under
§ 124.14, §§ 124.13 and 124.76 shall also apply.
§ 124.113 Public notice of draft permits
and public comment period.
Public notice of a draft permit under this sub-
part shall be given as provided in §§124.10 and
124.57. At the discretion of the Regional Adminis-
trator, the public comment period specified in this
notice may include an opportunity for a public
hearing under § 124.12.
§ 124.114 Request for hearing.
(a) By the close of the comment period under
§124.113, any person may request the Regional
Administrator to hold a panel hearing on the draft
permit by submitting a written request containing
the following:
(1) A brief statement of the interest of the per-
son requesting the hearing;
(2) A statement of any objections to the draft
permit;
(3) A statement of the issues which such person
proposes to raise for consideration at the hearing;
and
(4) Statements meeting the requirements of
§ 124.74(c)(l)-(5).
(b) Whenever (1) a written request satisfying
the requirements of paragraph (a) of this section
has been received and presents genuine issues of
material fact, or (2) the Regional Administrator
determines sua sponte that a hearing under this
subpart is necessary or appropriate, the Regional
Administrator shall notify each person requesting
the hearing and the applicant, and shall provide
public notice under §124.57(c). If the Regional
Administrator determines that a request does not
meet the requirements of paragraph (a) of this sec-
tion or does not present genuine issues of fact, the
Regional Administrator may deny the request for
the hearing and shall serve written notice of that
determination on all persons requesting the hear-
ing.
(c) The Regional Administrator may also decide
before a draft permit is prepared under § 124.6 that
a hearing should be held under this section. In
such cases, the public notice of the draft permit
shall explicitly so state and shall contain the infor-
mation required by § 124.57(c). This notice may
also provide for a hearing under § 124.12 before a
hearing is conducted under this section.
§ 124.115 Effect of denial of or absence
of request for hearing.
If no request for a hearing is made under
§124.114, or if all such requests are denied under
that section, the Regional Administrator shall then
prepare a recommended decision under §124.124.
Any person whose hearing request has been de-
nied may then appeal that recommended decision
to the Environmental Appeals Board as provided
in §124.91.
[48 FR 14264, Apr. 1, 1983, as amended at 57 FR 5337,
Feb. 13, 1992]
§124.116 Notice of hearing.
(a) Upon granting a request for a hearing under
§124.114 the Regional Administrator shall
36
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§124.119
promptly publish a notice of the hearing as re-
quired under § 124.57(c). The mailed notice shall
include a statement which indicates whether the
Presiding Officer or the Regional Administrator
will issue the Recommended decision. The mailed
notice shall also allow the participants at least 30
days to submit written comments as provided
under §124.118.
(b) The Regional Administrator may also give
notice of a hearing under this section at the same
time as notice of a draft permit under §124.113.
In that case the comment periods under §§ 124.113
and 124.118 shall be merged and held as a single
public comment period.
(c) The Regional Administrator may also give
notice of hearing under this section in response to
a hearing request under § 124.74 as provided in
§ 124.75.
§124.117 Request to participate in
hearing.
(a) Persons desiring to participate in any hearing
noticed under this section, shall file a request to
participate with the Regional Hearing Clerk before
the deadline set forth in the notice of the grant of
the hearing. Any person filing such a request be-
comes a party to the proceedings within the mean-
ing of the Administrative Procedure Act. The re-
quest shall include:
(1) A brief statement of the interest of the per-
son in the proceeding;
(2) A brief outline of the points to be addressed;
(3) An estimate of the time required; and
(4) The requirements of § 124.74(c)(l)-(5).
(5) If the request is submitted by an organiza-
tion, a nonbinding list of the persons to take part
in the presentation.
(b) As soon as practicable, but in no event later
than 2 weeks before the scheduled date of the
hearing, the Presiding Officer shall make a hearing
schedule available to the public and shall mail it
to each person who requested to participate in the
hearing.
§124.118 Submission of written com-
ments on draft permit.
(a) No later than 30 days before the scheduled
start of the hearing (or such other date as may be
set forth in the notice of hearing), each party shall
file all of its comments on the draft permit, based
on information in the administrative record and
any other information which is or reasonably
could have been available to that party. All com-
ments shall include any affidavits, studies, data,
tests, or other materials relied upon for making
any factual statements in the comments.
(b)(l) Written comments filed under paragraph
(a) of this section shall constitute the bulk of the
evidence submitted at the hearing. Oral statements
at the hearing should be brief and in the nature of
argument. They shall be restricted either to points
that could not have been made in written com-
ments, or to emphasize points which are made in
the comments, but which the party believes can
more effectively be argued in the hearing context.
(2) Notwithstanding the foregoing, within two
weeks prior to the deadline specified in paragraph
(a) of this section for the filing of comments, any
party may move to submit all or part of its com-
ments orally at the hearing in lieu of submitting
written comments and the Presiding Officer shall,
within one week, grant such motion if the Presid-
ing Officer finds that the party will be prejudiced
if required to submit the comments in written
form.
(c) Parties to any hearing may submit written
material in response to the comments filed by
other parties under paragraph (a) of this section at
the time they appear at the panel stage of the hear-
ing under §124.120.
§ 124.119 Presiding Officer.
(a)(l)(i) Before giving notice of a hearing under
this subpart in a proceeding involving an NPDES
permit, the Regional Administrator shall request
that the Chief Administrative Law Judge assign an
Administrative Law Judge as the Presiding Offi-
cer. The Chief Administrative Law Judge shall
then make the assignment.
(ii) If all parties to such a hearing waive in
writing their statutory right to have an Administra-
tive Law Judge named as the Presiding Officer in
a hearing subject to this subparagraph the Re-
gional Administrator may name a Presiding Offi-
cer under paragraph (a)(2)(ii) of this section.
(2) Before giving notice of a hearing under this
subpart in a proceeding which does not involve an
NPDES permit or a RCRA permit termination, the
Regional Administrator shall either:
(i) Request that the Chief Administrative Law
Judge assign an Administrative Law Judge as the
Presiding Officer. The Chief Administrative Law
Judge may thereupon make such an assignment if
he concludes that the other duties of his office
allow, or
(ii) Name a lawyer permanently or temporarily
employed by the Agency and without prior con-
nection with the proceeding to serve as Presiding
Officer;
(iii) If the Chief Administrative Law Judge de-
clines to name an Administrative Law Judge as
Presiding Officer upon receiving a request under
paragraph (a)(2)(i) of this section, the Regional
Administrator shall name a Presiding Officer
under paragraph (a)(2)(ii) of this section.
(b) It shall be the duty of the Presiding Officer
to conduct a fair and impartial hearing. The Pre-
siding Officer shall have the authority:
37
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§124.120
(1) Conferred by § 124.85(b)(l)-(15), §124.83
(b) and (c), and;
(2) To receive relevant evidence, provided that
all comments under §§124.113 and 124.118, the
record of the panel hearing under §124.120, and
the administrative record, as defined in § 124.9 or
in §124.18 as the case may be shall be received
in evidence, and
(3) Either upon motion or sua sponte, to change
the date of the hearing under §124.120, or to re-
cess such a hearing until a future date. In any such
case the notice required by §124.10 shall be
given.
(c) Whenever a panel hearing will be held on
an individual draft NPDES permit for a source
which does not have an existing permit, the Pre-
siding Officer, on motion by the source, may issue
an order authorizing it to begin discharging if it
complies with all conditions of the draft permit or
such other conditions as may be imposed by the
Presiding Officer in consultation with the panel.
The motion shall be granted if no party opposes
it, or if the source demonstrates that:
(1) It is likely to receive a permit to discharge
at that site;
(2) The environment will not be irreparably
harmed if the source is allowed to begin discharg-
ing in compliance with the conditions of the Pre-
siding Officer's order pending final agency action;
and
(3) Its discharge pending final agency action is
in the public interest.
(d) If for any offshore or coastal mobile explor-
atory drilling rig or coastal mobile developmental
drilling rig which has never received a finally ef-
fective permit to discharge at a "site," but which
is not a "new discharger" or "new source," the
Regional Administrator finds that compliance with
certain permit conditions may be necessary to
avoid irreparable environmental harm during the
nonadversary panel procedures, he may specify in
the statement of basis or fact sheet that those con-
ditions, even if contested, shall remain enforceable
obligations of the discharger during administrative
review unless otherwise modified by the Presiding
Officer under paragraph (c) of this section.
(Clean Water Act (33 U.S.C. 1251 et seq), Safe Drinking
Water Act (42 U.S.C. 300f et seq.), Clean Air Act (42
U.S.C. 7401 et seq.), Resource Conservation and Recov-
ery Act (42 U.S.C. 6901 et seq.))
[48 FR 14264, Apr. 1, 1983, as amended at 48 FR 39620,
Sept. 1, 1983]
§ 124.120 Panel hearing.
(a) A Presiding Officer shall preside at each
hearing held under this subpart. An EPA panel
shall also take part in the hearing. The panel shall
consist of three or more EPA temporary or perma-
nent employees having special expertise or respon-
sibility in areas related to the hearing issue, none
of whom shall have taken part in formulating the
draft permit. If appropriate for the evaluation of
new or different issues presented at the hearing,
the panel membership, at the discretion of the Re-
gional Administrator, may change or may include
persons not employed by EPA.
(b) At the time of the hearing notice under
§124.116, the Regional Administrator shall des-
ignate the persons who shall serve as panel mem-
bers for the hearing and the Regional Adminis-
trator shall file with the Regional Hearing Clerk
the name and address of each person so des-
ignated. The Regional Administrator may also des-
ignate EPA employees who will provide staff sup-
port to the panel but who may or may not serve
as panel members. The designated persons shall be
subject to the ex parte rules in § 124.78. The Re-
gional Administrator may also designate Agency
trial staff as defined in § 124.78 for the hearing.
(c) At any time before the close of the hearing
the Presiding Officer, after consultation with the
panel, may request that any person having knowl-
edge concerning the issues raised in the hearing
and not then scheduled to participate therein ap-
pear and testify at the hearing.
(d) The panel members may question any per-
son participating in the panel hearing. Cross-exam-
ination by persons other than panel members shall
not be permitted at this stage of the proceeding
except when the Presiding Officer determines,
after consultation with the panel, that the cross-ex-
amination would expedite consideration of the is-
sues. However, the parties may submit written
questions to the Presiding Officer for the Presiding
Officer to ask the participants, and the Presiding
Officer may, after consultation with the panel, and
at his or her sole discretion, ask these questions.
(e) At any time before the close of the hearing,
any party may submit to the Presiding Officer
written questions specifically directed to any per-
son appearing or testifying in the hearing. The
Presiding Officer, after consultation with the panel
may, at his sole discretion, ask the written ques-
tion so submitted.
(f) Within 10 days after the close of the hearing,
any party shall submit such additional written tes-
timony, affidavits, information, or material as they
consider relevant or which the panel may request.
These additional submissions shall be filed with
the Regional Hearing Clerk and shall be a part of
the hearing record.
[48 FR 14264, Apr. 1, 1983, as amended at 49 FR 38052,
Sept. 26, 1984]
§124.121 Opportunity for cross-exam-
ination.
(a) Any party to a panel hearing may submit a
written request to cross-examine any issue of ma-
38
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§124.122
terial fact. The motion shall be submitted to the
Presiding Officer within 15 days after a full tran-
script of the panel hearing is filed with the Re-
gional Hearing Clerk and shall specify:
(1) The disputed issue(s) of material fact. This
shall include an explanation of why the questions
at issue are factual, the extent to which they are
in dispute in light of the then existing record, and
the extent to which they are material to the deci-
sion on the application; and
(2) The person(s) to be cross-examined, and an
estimate of the time necessary to conduct the
cross-examination. This shall include a statement
explaining how the cross-examination will resolve
the disputed issues of material fact.
(b) After receipt of all motions for cross-exam-
ination under paragraph (a) of this section, the
Presiding Officer, after consultation with the hear-
ing panel, shall promptly issue an order either
granting or denying each request. No cross-exam-
ination shall be allowed on questions of policy ex-
cept to the extent required to disclose the factual
basis for permit requirements, or on questions of
law, or regarding matters (such as the validity of
effluent limitations guidelines) that are not subject
to challenge in permit issuance proceedings. Or-
ders granting requests for cross-examination shall
be served on all parties and shall specify:
(1) The issues on which cross-examination is
granted;
(2) The persons to be cross-examined on each
issue;
(3) The persons allowed to conduct cross-exam-
ination;
(4) Time limits for the examination of witnesses
by each cross-examiner; and
(5) The date, time, and place of the supple-
mentary hearing at which cross-examination shall
take place.
(6) In issuing this order, the Presiding Officer
may determine that two or more parties have the
same or similar interests and that to prevent un-
duly repetitious cross-examination, they should be
required to choose a single representative for pur-
poses of cross-examination. In that case, the order
shall simply assign time for cross-examination
without further identifying the representative. If
the designated parties fail to choose a single rep-
resentative, the Presiding Officer may divide the
assigned time among the representatives or issue
any other order which justice may require.
(c) [Reserved]
(d) The Presiding Officer and, to the extent pos-
sible, the members of the hearing panel shall be
present at the supplementary hearing. During the
course of the hearing, the Presiding Officer shall
have authority to modify any order issued under
paragraph (b) of this section. A record will be
made under SI24.87.
(e)(l) No later than the time set for requesting
cross-examination, a party may request that alter-
native methods of clarifying the record (such as
the submission of additional written information)
be used in lieu of or in addition to cross-examina-
tion. The Presiding Officer shall issue an order
granting or denying this request at the time he or
she issues (or would have issued) an order grant-
ing or denying a request for cross-examination,
under paragraph (b) of this section. If the request
for an alternative method is granted, the order
shall specify the alternative and any other relevant
information (such as the due date for submitting
written information).
(2) In passing on any request for cross-examina-
tion submitted under paragraph (a) of this section,
the Presiding Officer may, as a precondition to
ruling on the merits of the request, require alter-
native means of clarifying the record to be used
whether or not a request to do so has been made.
The party requesting cross-examination shall have
one week to comment on the results of using the
alternative method. After considering these com-
ments the Presiding Officer shall issue an order
granting or denying the request for cross-examina-
tion.
(f) The provisions of §§ 124.85(d)(2) and
124.84(e) apply to proceedings under this subpart.
[48 FR 14264, Apr. 1, 1983, as amended at 49 FR 38052,
Sept. 26, 1984]
§ 124.122 Record for final permit.
The record on which the final permit shall be
based in any proceeding under this subpart con-
sists of:
(a) The administrative record compiled under
§ 124.9 or § 124.18 as the case may be;
(b) Any material submitted under § 124.78 relat-
ing to ex parte contacts;
(c) All notices issued under § 124.113;
(d) All requests for hearings, and rulings on
those requests, received or issued under §124.114;
(e) Any notice of hearing issued under
§124.116;
(f) Any request to participate in the hearing re-
ceived under §124.117;
(g) All comments submitted under §124.118,
any motions made under that section and the rul-
ings on them, and any comments filed under
§124.113;
(h) The full transcript and other material re-
ceived into the record of the panel hearing under
§124.120;
(i) Any motions for, or rulings on, cross-exam-
ination filed or issued under §124.121;
(j) Any motions for, orders for, and the results
of, any alternatives to cross-examination under
§124.121; and
39
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§124.123
(k) The full transcript of any cross-examination
held.
§124.123 Filing of brief, proposed find-
ings of fact and conclusions of law
and proposed modified permit.
Unless otherwise ordered by the Presiding Offi-
cer, each party may, within 20 days after all re-
quests for cross-examination are denied or after a
transcript of the full hearing including any cross-
examination becomes available, submit proposed
findings of fact; conclusions regarding material is-
sues of law, fact, or discretion; a proposed modi-
fied permit (if such person is urging that the draft
or final permit be modified); and a brief in support
thereof; together with references to relevant pages
of transcript and to relevant exhibits. Within 10
days thereafter each party may file a reply brief
concerning matters contained in opposing briefs
and containing alternative findings of fact; conclu-
sions regarding material issues of law, fact, or dis-
cretion; and a proposed modified permit where ap-
propriate. Oral argument may be held at the dis-
cretion of the Presiding Officer on motion of any
party or sua sponte.
§124.124 Recommended decision.
The person named to prepare the decision shall,
as soon as practicable after the conclusion of the
hearing, evaluate the record of the hearing and
prepare and file a recommended decision with the
Regional Hearing Clerk. That person may consult
with, and receive assistance from, any member of
the hearing panel in drafting the recommended de-
cision, and may delegate the preparation of the
recommended decision to the panel or to any
member or members of it. This decision shall con-
tain findings of fact, conclusions regarding all ma-
terial issues of law, and a recommendation as to
whether and in what respect the draft or final per-
mit should be modified. After the recommended
decision has been filed, the Regional Hearing
Clerk shall serve a copy of that decision on each
party and upon the Environmental Appeals Board.
[48 FR 14264, Apr. 1, 1983, as amended at 57 FR 5337,
Feb. 13, 1992]
§ 124.125 Appeal from or review of rec-
ommended decision.
Within 30 days after service of the rec-
ommended decision, any party may take exception
to any matter set forth in that decision or to any
adverse order or ruling of the Presiding Officer to
which that party objected, and may appeal those
exceptions to the Environmental Appeals Board as
provided in § 124.91, except that references to the
initial decision will mean recommended decision
under §124.124.
[57 FR 5337, Feb. 13, 1992]
§124.126 Final decision.
As soon as practicable after all appeal proceed-
ings have been completed, the Environmental Ap-
peals Board shall issue a final decision. The Envi-
ronmental Appeals Board may consult with the
Presiding Officer, members of the hearing panel,
or any other EPA employee other than members
of the Agency Trial Staff under § 124.78 in pre-
paring the final decision. The Hearing Clerk shall
file a copy of the decision on all parties.
[57 FR 5337, Feb. 13, 1992]
§124.127 Final decision if there is no
review.
If no party appeals a recommended decision to
the Environmental Appeals Board, and if the Envi-
ronmental Appeals Board does not elect to review
it, the recommended decision becomes the final
decision of the Agency upon the expiration of the
time for filing any appeals.
[57 FR 5337, Feb. 13, 1992]
§124.128 Delegation of authority; time
limitations.
(a) The Administrator delegates authority to the
Environmental Appeals Board (which is described
in §1.25 of this title) to issue final decisions in
appeals filed under this subpart. An appeal di-
rected to the Administrator, rather than to the En-
vironmental Appeals Board, will not be consid-
ered. This delegation does not preclude the Envi-
ronmental Appeals Board from referring an appeal
or a motion filed under this subpart to the Admin-
istrator when the Environmental Appeals Board, in
its discretion, deems it appropriate to do so. When
an appeal or motion is referred to the Adminis-
trator by the Environmental Appeals Board, all
parties shall be so notified and the rules in this
subpart referring to the Environmental Appeals
Board shall be interpreted as referring to the Ad-
ministrator.
(b) The failure of the Environmental Appeals
Board, the Regional Administrator, or the Presid-
ing Officer to do any act within the time periods
specified under this part shall not waive or dimin-
ish any right, power, or authority of the United
States Environmental Protection Agency.
(c) Upon a showing by any party that it has
been prejudiced by a failure of the Environmental
Appeals Board, the Regional Administrator, or the
Presiding Officer to do any act within the time pe-
riods specified under this part, the Environmental
Appeals Board, the Regional Administrator, and
40
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Pt. 124, App. A
the Presiding Officer, as the case may be, may
grant that party such relief of a procedural nature
(including extension of any time for compliance or
other action) as may be appropriate.
[57 FR 5337, Feb. 13, 1992]
APPENDIX A TO PART 124—GUIDE TO
DECISIONMAKTNG UNDER PART 124
This appendix is designed to assist in reading the pro-
cedural requirements set out in part 124. It consists of
two flow charts.
Figure 1 diagrams the more conventional sequence of
procedures EPA expects to follow in processing permits
under this part. It outlines how a permit will be applied
for, how a draft permit will be prepared and publicly no-
ticed for comment, and how a final permit will be issued
under the procedures in subpart A.
This permit may then be appealed to the Administrator,
as specified both in subpart A (for RCRA, UIC, or PSD
permits), or subpart E or F (for NPDES permits). The
first flow chart also briefly outlines which permit deci-
sions are eligible for which types of appeal.
Part 124 also contains special "non-adversary panel
hearing" procedures based on the "initial licensing" pro-
visions of the Administrative Procedure Act. These proce-
dures are set forth in subpart F. In some cases, EPA may
only decide to make those procedures applicable after it
has gone through the normal subpart A procedures on a
draft permit. This process is also diagrammed in Figure
1.
Figure 2 sets forth the general procedure to be followed
where these subpart F procedures have been made appli-
cable to a permit from the beginning.
Both flow charts outline a sequence of events directed
by arrows. The boxes set forth elements of the permit
process; and the diamonds indicate key decisionmaking
points in the permit process.
The charts are discussed in more detail below.
Figure 1—Conventional EPA Permitting Procedures
This chart outlines the procedures for issuing permits
whenever EPA does not make use of the special "panel
hearing" procedures in subpart F. The major steps de-
picted on this chart are as follows:
1. The permit process can begin in any one of the fol-
lowing ways:
a. Normally, the process will begin when a person ap-
plies for a permit under §§122.21 (NPDES), 144.31
(UIC), 233.4 (404), and 270.10 (RCRA) and 124.3.
b. In other cases, EPA may decide to take action on
its own initiative to change a permit or to issue a general
permit. This leads directly to preparation of a draft permit
under §124.6.
c. In addition, the permittee or any interested person
(other than for PSD permits) may request modification,
revocation and reissuance or termination of a permit
under §§ 122.62, 122.64 (NPDES), 144.39, 144.40 (UIC),
233.14, 233.15, (404), 270.41, 270.43 (RCRA), and
124.5.
Those requests can be handled in either of two ways:
i. EPA may tentatively decide to grant the request and
issue a new draft permit for public comment, either with
or without requiring a new application.
ii. If the request is denied, an informal appeal to the
Environmental Appeals Board is available.
2. The next major step in the permit process is the
preparation of a draft permit. As the chart indicates, pre-
paring a draft permit also requires preparation of either a
statement of basis (§ 124.7), a fact sheet (§ 124.5) or,
compilation of an "administrative record" (§ 124.9), and
public notice (§124.10).
3. The next stage is the public comment period
(§124.11). A public hearing under §124.12 may be re-
quested before the close of the public comment period.
EPA has the discretion to hold a public hearing, even
if there were no requests during the public comment pe-
riod. If EPA decides to schedule one, the public comment
period will be extended through the close of the hearing.
EPA also has the discretion to conduct the public hearing
under subpart F panel procedures. (See Figure 2.)
The regulations provide that all arguments and factual
materials that a person wishes EPA to consider in connec-
tion with a particular permit must be placed in the record
by the close of the public comment period (§ 124.13).
4. Section 124.14 states that EPA, at any time before
issuing a final permit decision may decide to either re-
open or extend the comment period, prepare a new draft
permit and begin the process again from that point, or for
RCRA and UIC permits, or for NPDES permits that con-
stitute "initial licensing", to begin "panel hearing" pro-
ceedings under subpart F. These various results are shown
schematically.
5. The public comment period and any public hearing
will be followed by issuance of a final permit decision
(§ 124.15). As the chart shows, the final permit must be
accompanied by a response to comments (§124.17) and
be based on the administrative record (§ 124.18).
6. After the final permit is issued, it may be appealed
to higher agency authority. The exact form of the appeal
depends on the type of permit involved.
a. RCRA, UIC, or PSD permits standing alone will be
appealed directly to the Environmental Appeals Board
under §124.9.
b. NPDES permits which do not involve "initial licens-
ing" may be appealed in an evidentiary hearing under
subpart E. The regulations provide (§ 124.74) that if such
a hearing is granted for an NPDES permit and if RCRA
or UIC permits have been consolidated with that permit
under §124.4 then closely related conditions of those
RCRA or UIC permits may be reexamined in an evi-
dentiary hearing. PSD permits, however, may never be re-
examined in a subpart E hearing.
c. NPDES permits which do involve "initial licensing"
may be appealed in a panel hearing under subpart F. The
regulations provide that if such a hearing is granted for
an NPDES permit, consolidated RCRA, UIC, or PSD per-
mits may also be reexamined in the same proceeding.
As discussed below, this is only one of several ways
the panel hearing procedures may be used under these
regulations.
7. This chart does not show EPA appeal procedures in
detail. Procedures for appeal to the Environmental Ap-
peals Board under §124.19 are self-explanatory; subpart
F procedures are diagrammed in Figure 2; and subpart E
procedures are basically the same that would apply in any
evidentiary hearing.
However, the chart at this stage does reflect the provi-
sions of § 124.60(b), which allows EPA, even after a for-
mal hearing has begun, to "recycle" a permit back to the
draft permit stage at any time before that hearing has re-
sulted in an initial decision.
41
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Pt. 124, App. A
Figure 2—Non-Adversary Panel Procedures
This chart outlines the procedures for processing per-
mits under the special "panel hearing" procedures of
subpart F. These procedures were designed for making
decisions that involve "initial licensing" NPDES permits.
Those permits include the first decisions on an NPDES
permit applied for by any discharger that has not pre-
viously held one, and the first decision on any statutory
variance. In addition, these procedures will be used for
any RCRA, UIC, or PSD permit which has been consoli-
dated with such an NPDES permit, and may be used, if
the Regional Administrator so chooses, for the issuance of
individual RCRA or UIC permits. The steps depicted on
this chart are as follows:
1. Application for a permit. These proceedings will
generally begin with an application, since NPDES initial
licensing always will begin with an application.
2. Preparation of a draft permit. This is identical to the
similar step in Figure 1.
3. Public comment period. This again is identical to the
similar step in Figure 1. The Regional Administrator has
the opportunity to schedule an informal public hearing
under § 124.12 during this period.
4. Requests for a panel hearing must be received by the
end of the public comment period under §124.113. The
recommended decision may then be appealed to the Envi-
ronmental Appeals Board. See § 124.115.
If a hearing request is denied, or if no hearing requests
are received, a recommended decision will be issued
based on the comments received. The recommended deci-
sion may then be appealed to the Administrator. See
§124.115.
5. If a hearing is granted, notice of the hearing will be
published in accordance with §124.116 and will be fol-
lowed by a second comment period during which requests
to participate and the bulk of the remaining evidence for
the final decision will be received (§§ 124.117 and
124.118).
The regulations also allow EPA to move directly to this
stage by scheduling a hearing when the draft permit is
prepared. In such cases the comment period on the draft
permit under §124.113 and the prehearing comment pe-
riod under § 124.118 would occur at the same time. EPA
anticipates that this will be the more frequent practice
when permits are processed under panel procedures.
This is also a stage at which EPA can switch from the
conventional procedures diagramed in Figure 1 to the
panel hearing procedures. As the chart indicates, EPA
would do this by scheduling a panel hearing either
through use of the "recycle" provision in § 124.14 or in
response to a request for a formal hearing under § 124.74.
6. After the close of the comment period, a panel hear-
ing will be held under § 124.120, followed by any cross-
examination granted under §124.121. The recommended
decision will then be prepared (§ 124.124) and an oppor-
tunity for appeal provided under § 124.125. A final deci-
sion will be issued after appeal proceedings, if any, are
concluded.
42
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Pt. 124, App. A
EC01MR92.017
43
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Pt. 124, App. A
EC01MR92.018
44
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Pt. 124, App. A
EC01MR92.019
[48 FR 14264, Apr. 1, 1983, as amended at 57 FR 5337, 5338, Feb. 13, 1992
45
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PART 125—CRITERIA AND STAND-
ARDS FOR THE NATIONAL POL-
LUTANT DISCHARGE ELIMI-
NATION SYSTEM
Subpart A—Criteria and Standards for Im-
posing Technology-Based Treatment
Requirements Under Sections 301 (b)
and 402 of the Act
Sec.
125.1 Purpose and scope.
125.2 Definitions.
125.3 Technology-based treatment requirements in per-
mits.
Subpart B—Criteria for Issuance of Permits
to Aquaculture Projects
125.10 Purpose and scope.
125.11 Criteria.
Subpart C [Reserved]
Subpart D—Criteria and Standards for De-
termining Fundamentally Different Fac-
tors Under Sections 301(b)(1)(A),
301(b)(2) (A) and (E) of the Act
125.30 Purpose and scope.
125.31 Criteria.
125.32 Method of application.
Subpart E—Criteria for Granting Economic
Variances From Best Available Tech-
nology Economically Achievable
Under Section 301 (c) of the Act—[Re-
served]
Subpart F—Criteria for Granting Water
Quality Related Variances Under Sec-
tion 301 (g) of the Act—[Reserved]
Subpart G—Criteria for Modifying the Sec-
ondary Treatment Requirements Under
Section 301 (h) of the Clean Water Act
125.56 Scope and purpose.
125.57 Law governing issuance of a section 301(h)
modified permit.
125.58 Definitions.
125.59 General.
125.60 Primary or equivalent treatment requirements.
125.61 Existence of and compliance with applicable
water quality standards.
125.62 Attainment or maintenance of water quality
which assures protection of public water supplies;
assures the protection and propagation of a balanced,
indigenous population of shellfish, fish, and wildlife;
and allows recreational activities.
125.63 Establishment of a monitoring program.
125.64 Effect of the discharge on other point and
nonpoint sources.
125.65 Urban area pretreatment program.
125.66 Toxics control program.
125.67 Increase in effluent volume or amount of pollut-
ants discharged.
125.68 Special conditions for section 301(h) modified
permits.
APPENDIX TO PART 125 TO SUBPART G—APPLICANT
QUESTIONNAIRE FOR MODIFICATION OF SECONDARY
TREATMENT REQUIREMENTS
Subpart H—Criteria for Determining Alter-
native Effluent Limitations Under Sec-
tion 316(a) of the Act
125.70 Purpose and scope.
125.71 Definitions.
125.72 Early screening of applications for section 316(a)
variances.
125.73 Criteria and standards for the determination of
alternative effluent limitations under section 316(a).
Subpart I—Criteria Applicable To Cooling
Water Intake Structures Under Section
316(b) of the Act—[Reserved]
Subpart J [Reserved]
Subpart K—Criteria and Standards for Best
Management Practices Authorized
Under Section 304(e) of the Act
125.100 Purpose and scope.
125.101 Definition.
125.102 Applicability of best management practices.
125.103 Permit terms and conditions.
125.104 Best management practices programs.
Subpart L—Criteria and Standards for Im-
posing Conditions for the Disposal of
Sewage Sludge Under Section 405 of
the Act—[Reserved]
Subpart M—Ocean Discharge Criteria
125.120 Scope and purpose.
125.121 Definitions.
125.122 Determination of unreasonable degradation of
the marine environment.
125.123 Permit requirements.
125.124 Information required to be submitted by appli-
cant.
AUTHORITY: Clean Water Act, as amended by the
Clean Water Act of 1977, 33 U.S.C. 1251 et seq., unless
otherwise noted.
SOURCE: 44 FR 32948, June 7, 1979, unless otherwise
noted.
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§125.1
Subpart A—Criteria and Standards
for Imposing Technology-
Based Treatment Require-
ments Under Sections 301 (b)
and 402 of the Act
§ 125.1 Purpose and scope.
This subpart establishes criteria and standards
for the imposition of technology-based treatment
requirements in permits under section 301(b) of
the Act, including the application of EPA promul-
gated effluent limitations and case-by-case deter-
minations of effluent limitations under section
402(a)(l) of the Act.
§125.2 Definitions.
For the purposes of this part, any reference to
the Act shall mean the Clean Water Act of 1977
(CWA). Unless otherwise noted, the definitions in
parts 122, 123 and 124 apply to this part.
[45 FR 33512, May 19, 1980]
§125.3 Technology-based treatment re-
quirements in permits.
(a) General. Technology-based treatment re-
quirements under section 301(b) of the Act rep-
resent the minimum level of control that must be
imposed in a permit issued under section 402 of
the Act. (See §§ 122.41, 122.42 and 122.44 for a
discussion of additional or more stringent effluent
limitations and conditions.) Permits shall contain
the following technology-based treatment require-
ments in accordance with the following statutory
deadlines;
(1) For POTW's, effluent limitations based
upon:
(i) Secondary treatment—from date of permit is-
suance; and
(ii) The best practicable waste treatment tech-
nology—not later than July 1, 1983; and
(2) For dischargers other than POTWs except as
provided in § 122.29(d), effluent limitations requir-
ing:
(i) The best practicable control technology cur-
rently available (BPT)—
(A) For effluent limitations promulgated under
Section 304(b) after January 1, 1982 and requiring
a level of control substantially greater or based on
fundamentally different control technology than
under permits for an industrial category issued be-
fore such date, compliance as expeditiously as
practicable but in no case later than three years
after the date such limitations are promulgated
under section 304(b) and in no case later than
March 31, 1989;
(B) For effluent limitations established on a
case-by-case basis based on Best Professional
Judgment (BPJ) under Section 402(a)(l)(B) of the
Act in a permit issued after February 4, 1987,
compliance as expeditiously as practicable but in
no case later than three years after the date such
limitations are established and in no case later
than March 31, 1989;
(C) For all other BPT effluent limitations com-
pliance is required from the date of permit issu-
ance.
(ii) For conventional pollutants, the best conven-
tional pollutant control technology (BCT)—
(A) For effluent limitations promulgated under
section 304(b), as expeditiously as practicable but
in no case later than three years after the date such
limitations are promulgated under section 304(b),
and in no case later than March 31, 1989.
(B) For effluent limitations established on a
case-by-case (BPJ) basis under section
402(a)(l)(B) of the Act in a permit issued after
February 4, 1987, compliance as expeditiously as
practicable but in no case later than three years
after the date such limitations are established and
in no case later than March 31, 1989;
(iii) For all toxic pollutants referred to in Com-
mittee Print No. 95-30, House Committee on Pub-
lic Works and Transportation, the best available
technology economically achievable (BAT)—
(A) For effluent limitations established under
section 304(b), as expeditiously as practicable but
in no case later than three years after the date such
limitations are promulgated under section 304(b),
and in no case later than March 31, 1989.
(B) For permits issued on a case-by-case (BPJ)
basis under section 402(a)(l)(B) of the Act after
February 4, 1987 establishing BAT effluent
limitations, compliance is required as
expeditiously as practicable but in no case later
than three years after the date such limitations are
promulgated under section 304(b), and in no case
later than March 31, 1989.
(iv) For all toxic pollutants other than those list-
ed in Committee Print No. 95-30, effluent limita-
tions based on BAT—
(A) For effluent limitations promulgated under
section 304(b) compliance is required as expedi-
tiously as practicable, but in no case later than
three years after the date such limitations are pro-
mulgated under section 304(b) and in no case later
than March 31, 1989.
(B) For permits issued on a case-by-case (BPJ)
basis under Section 402(a)(l)(B) of the Act after
February 4, 1987 establishing BAT effluent limita-
tions, compliance is required as expeditiously as
practicable but in no case later than 3 years after
the date such limitations are established and in no
case later than March 31, 1989.
(v) For all pollutants which are neither toxic nor
conventional pollutants, effluent limitations based
on BAT—
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§125.3
(A) For effluent limitations promulgated under
section 304(b), compliance is required as expedi-
tiously as practicable but in no case later than 3
years after the date such limitations are established
and in no case later than March 31, 1989.
(B) For permits issued on a case-by-case (BPJ)
basis under section 402(a)(l)(B) of the Act after
February 4, 1987 establishing BAT effluent limita-
tions compliance is required as expeditiously as
practicable but in no case later than three years
after the date such limitations are established and
in no case later than March 31, 1989.
(b) Statutory variances and extensions. (1) The
following variances from technology-based treat-
ment requirements are authorized by the Act and
may be applied for under § 122.21;
(i) For POTW's, a section 301(h) marine dis-
charge variance from secondary treatment (subpart
G);
(ii) For dischargers other than POTW's;
(A) A section 301(c) economic variance from
BAT (subpart E);
(B) A section 301(g) water quality related vari-
ance from BAT (subpart F); and
(C) A section 316(a) thermal variance from
BPT, BCT and BAT (subpart H).
(2) The following extensions of deadlines for
compliance with technology-based treatment re-
quirements are authorized by the Act and may be
applied for under § 124.53:
(i) For POTW's a section 301(i) extension of
the secondary treatment deadline (subpart J);
(ii) For dischargers other than POTW's:
(A) A section 301(i) extension of the BPT dead-
line (subpart J); and
(B) A section 301(k) extension of the BAT
deadline (subpart C).
(c) Methods of imposing technology-based treat-
ment requirements in permits. Technology-based
treatment requirements may be imposed through
one of the following three methods:
(1) Application of EPA-promulgated effluent
limitations developed under section 304 of the Act
to dischargers by category or subcategory. These
effluent limitations are not applicable to the extent
that they have been remanded or withdrawn. How-
ever, in the case of a court remand, determinations
underlying effluent limitations shall be binding in
permit issuance proceedings where those deter-
minations are not required to be reexamined by a
court remanding the regulations. In addition, dis-
chargers may seek fundamentally different factors
variances from these effluent limitations under
§ 122.21 and subpart D of this part.
(2) On a case-by-case basis under section
402(a)(l) of the Act, to the extent that EPA-pro-
mulgated effluent limitations are inapplicable. The
permit writer shall apply the appropriate factors
listed in § 125.3(d) and shall consider:
(i) The appropriate technology for the category
or class of point sources of which the applicant is
a member, based upon all available information;
and
(ii) Any unique factors relating to the applicant.
[Comment: These factors must be considered in all cases,
regardless of whether the permit is being issued by EPA
or an approved State.]
(3) Through a combination of the methods in
paragraphs (d) (1) and (2) of this section. Where
promulgated effluent limitations guidelines only
apply to certain aspects of the discharger's oper-
ation, or to certain pollutants, other aspects or ac-
tivities are subject to regulation on a case-by-case
basis in order to carry out the provisions of the
Act.
(4) Limitations developed under paragraph
(d)(2) of this section may be expressed, where ap-
propriate, in terms of toxicity (e.g., "the LCso for
fat head minnow of the effluent from outfall 001
shall be greater than 25%"). Provided, That is
shown that the limits reflect the appropriate re-
quirements (for example, technology-based or
water-quality-based standards) of the Act.
(d) In setting case-by-case limitations pursuant
to § 125.3(c), the permit writer must consider the
following factors:
(1) For BPT requirements: (i) The total cost of
application of technology in relation to the effluent
reduction benefits to be achieved from such appli-
cation;
(ii) The age of equipment and facilities in-
volved;
(iii) The process employed;
(iv) The engineering aspects of the application
of various types of control techniques;
(v) Process changes; and
(vi) Non-water quality environmental impact
(including energy requirements).
(2) For BCT requirements: (i) The reasonable-
ness of the relationship between the costs of at-
taining a reduction in effluent and the effluent re-
duction benefits derived;
(ii) The comparison of the cost and level of re-
duction of such pollutants from the discharge from
publicly owned treatment works to the cost and
level of reduction of such pollutants from a class
or category of industrial sources;
(iii) The age of equipment and facilities in-
volved;
(iv) The process employed;
(v) The engineering aspects of the application of
various types of control techniques;
(vi) Process changes; and
(vii) Non-water quality environmental impact
(including energy requirements).
(3) For BAT requirements: (i) The age of equip-
ment and facilities involved;
(ii) The process employed;
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§125.10
(iii) The engineering aspects of the application
of various types of control techniques;
(iv) Process changes;
(v) The cost of achieving such effluent reduc-
tion; and
(vi) Non-water quality environmental impact
(including energy requirements).
(e) Technology-based treatment requirements
are applied prior to or at the point of discharge.
(f) Technology-based treatment requirements
cannot be satisfied through the use of "non-treat-
ment" techniques such as flow augmentation and
in-stream mechanical aerators. However, these
techniques may be considered as a method of
achieving water quality standards on a case-by-
case basis when:
(1) The technology-based treatment require-
ments applicable to the discharge are not sufficient
to achieve the standards;
(2) The discharger agrees to waive any oppor-
tunity to request a variance under section 301 (c),
(g) or (h) of the Act; and
(3) The discharger demonstrates that such a
technique is the preferred environmental and eco-
nomic method to achieve the standards after con-
sideration of alternatives such as advanced waste
treatment, recycle and reuse, land disposal,
changes in operating methods, and other available
methods.
(g) Technology-based effluent limitations shall
be established under this subpart for solids,
sludges, filter backwash, and other pollutants re-
moved in the course of treatment or control of
wastewaters in the same manner as for other pol-
lutants.
(h)(l) The Director may set a permit limit for
a conventional pollutant at a level more stringent
than the best conventional pollution control tech-
nology (BCT), or a limit for a nonconventional
pollutant which shall not be subject to modifica-
tion under section 301 (c) or (g) of the Act where:
(i) Effluent limitations guidelines specify the
pollutant as an indicator for a toxic pollutant, or
(ii)(A) The limitation reflects BAT-level control
of discharges of one or more toxic pollutants
which are present in the waste stream, and a spe-
cific BAT limitation upon the toxic pollutant(s) is
not feasible for economic or technical reasons;
(B) The permit identifies which toxic pollutants
are intended to be controlled by use of the limita-
tion; and
(C) The fact sheet required by § 124.56 sets
forth the basis for the limitation, including a find-
ing that compliance with the limitation will result
in BAT-level control of the toxic pollutant dis-
charges identified in paragraph (h)(l)(ii)(B) of this
section, and a finding that it would be economi-
cally or technically infeasible to directly limit the
toxic pollutant(s).
(2) The Director may set a permit limit for a
conventional pollutant at a level more stringent
than BCT when:
(i) Effluent limitations guidelines specify the
pollutant as an indicator for a hazardous substance,
or
(ii)(A) The limitation reflects BAT-level control
of discharges (or an appropriate level determined
under section 301(c) or (g) of the Act) of one or
more hazardous substance(s) which are present in
the waste stream, and a specific BAT (or other ap-
propriate) limitation upon the hazardous sub-
stance^) is not feasible for economic or technical
reasons;
(B) The permit identifies which hazardous sub-
stances are intended to be controlled by use of the
limitation; and
(C) The fact sheet required by § 124.56 sets
forth the basis for the limitation, including a find-
ing that compliance with the limitations will result
in BAT-level (or other appropriate level) control
of the hazardous substances discharges identified
in paragraph (h)(2)(ii)(B) of this section, and a
finding that it would be economically or tech-
nically infeasible to directly limit the hazardous
substance(s).
(iii) Hazardous substances which are also toxic
pollutants are subject to paragraph (h)(l) of this
section.
(3) The Director may not set a more stringent
limit under the preceding paragraphs if the method
of treatment required to comply with the limit dif-
fers from that which would be required if the toxic
pollutant(s) or hazardous substance(s) controlled
by the limit were limited directly.
(4) Toxic pollutants identified under paragraph
(h)(l) of this section remain subject to the require-
ments of § 122.42(a)(l) (notification of increased
discharges of toxic pollutants above levels re-
ported in the application form).
(Clean Water Act, Safe Drinking Water Act, Clean Air
Act, Resource Conservation and Recovery Act: 42 U.S.C.
6905, 6912, 6925, 6927, 6974)
[44 FR 32948, June 7, 1979, as amended at 45 FR 33512,
May 19, 1980; 48 FR 14293, Apr. 1, 1983; 49 FR 38052,
Sept. 26, 1984; 50 FR 6941, Feb. 19, 1985; 54 FR 257,
Jan. 4, 1989]
Subpart B—Criteria for Issuance of
Permits to Aquaculture Projects
§125.10 Purpose and scope.
(a) These regulations establish guidelines under
sections 318 and 402 of the Act for approval of
any discharge of pollutants associated with an
aquaculture project.
(b) The regulations authorize, on a selective
basis, controlled discharges which would other-
wise be unlawful under the Act in order to deter-
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§125.30
mine the feasibility of using pollutants to grow
aquatic organisms which can be harvested and
used beneficially. EPA policy is to encourage such
projects, while at the same time protecting other
beneficial uses of the waters.
(c) Permits issued for discharges into aqua-
culture projects under this subpart are NPDES per-
mits and are subject to the applicable requirements
of parts 122, 123 and 124. Any permit shall in-
clude such conditions (including monitoring and
reporting requirements) as are necessary to comply
with those parts. Technology-based effluent limita-
tions need not be applied to discharges into the
approved project except with respect to toxic pol-
lutants.
§125.11 Criteria.
(a) No NPDES permit shall be issued to an
aquaculture project unless:
(1) The Director determines that the aquaculture
project:
(i) Is intended by the project operator to
produce a crop which has significant direct or in-
direct commercial value (or is intended to be oper-
ated for research into possible production of such
a crop); and
(ii) Does not occupy a designated project area
which is larger than can be economically operated
for the crop under cultivation or than is necessary
for research purposes.
(2) The applicant has demonstrated, to the satis-
faction of the Director, that the use of the pollut-
ant to be discharged to the aquaculture project will
result in an increased harvest of organisms under
culture over what would naturally occur in the
area;
(3) The applicant has demonstrated, to the satis-
faction of the Director, that if the species to be
cultivated in the aquaculture project is not indige-
nous to the immediate geographical area, there
will be minimal adverse effects on the flora and
fauna indigenous to the area, and the total com-
mercial value of the introduced species is at least
equal to that of the displaced or affected indige-
nous flora and fauna;
(4) The Director determines that the crop will
not have a significant potential for human health
hazards resulting from its consumption;
(5) The Director determines that migration of
pollutants from the designated project area to
water outside of the aquaculture project will not
cause or contribute to a violation of water quality
standards or a violation of the applicable standards
and limitations applicable to the supplier of the
pollutant that would govern if the aquaculture
project were itself a point source. The approval of
an aquaculture project shall not result in the en-
largement of a pre-existing mixing zone area be-
yond what had been designated by the State for
the original discharge.
(b) No permit shall be issued for any aqua-
culture project in conflict with a plan or an
amendment to a plan approved under section
208(b) of the Act.
(c) No permit shall be issued for any aqua-
culture project located in the territorial sea, the
waters of the contiguous zone, or the oceans, ex-
cept in conformity with guidelines issued under
section 403(c) of the Act.
(d) Designated project areas shall not include a
portion of a body of water large enough to expose
a substantial portion of the indigenous biota to the
conditions within the designated project area. For
example, the designated project area shall not in-
clude the entire width of a watercourse, since all
organisms indigenous to that watercourse might be
subjected to discharges of pollutants that would,
except for the provisions of section 318 of the
Act, violate section 301 of the Act.
(e) Any modifications caused by the construc-
tion or creation of a reef, barrier or containment
structure shall not unduly alter the tidal regimen of
an estuary or interfere with migrations of
unconfined aquatic species.
[Comment: Any modifications described in this paragraph
which result in the discharge of dredged or fill material
into navigable waters may be subject to the permit re-
quirements of section 404 of the Act.]
(f) Any pollutants not required by or beneficial
to the aquaculture crop shall not exceed applicable
standards and limitations when entering the des-
ignated project area.
Subpart C [Reserved]
Subpart D—Criteria and Standards
for Determining Fundamen-
tally Different Factors Under
Sections 301(b)(1)(A),
301 (b) (2) (A) and (E) of the
Act
§ 125.30 Purpose and scope.
(a) This subpart establishes the criteria and
standards to be used in determining whether efflu-
ent limitations alternative to those required by pro-
mulgated EPA effluent limitations guidelines
under sections 301 and 304 of the Act (hereinafter
referred to as "national limits") should be im-
posed on a discharger because factors relating to
the discharger's facilities, equipment, processes or
other factors related to the discharger are fun-
damentally different from the factors considered
by EPA in development of the national limits.
This subpart applies to all national limitations pro-
mulgated under sections 301 and 304 of the Act,
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§125.31
except for the BPT limits contained in 40 CFR
423.12 (steam electric generating point source cat-
egory).
(b) In establishing national limits, EPA takes
into account all the information it can collect, de-
velop and solicit regarding the factors listed in
sections 304(b) and 304(g) of the Act. In some
cases, however, data which could affect these na-
tional limits as they apply to a particular discharge
may not be available or may not be considered
during their development. As a result, it may be
necessary on a case-by-case basis to adjust the na-
tional limits, and make them either more or less
stringent as they apply to certain dischargers with-
in an industrial category or subcategory. This will
only be done if data specific to that discharger in-
dicates it presents factors fundamentally different
from those considered by EPA in developing the
limit at issue. Any interested person believing that
factors relating to a discharger's facilities, equip-
ment, processes or other facilities related to the
discharger are fundamentally different from the
factors considered during development of the na-
tional limits may request a fundamentally different
factors variance under § 122.21(1)(1). In addition,
such a variance may be proposed by the Director
in the draft permit.
(Sees. 301, 304, 306, 307, 308, and 501 of the Clean
Water Act (the Federal Water Pollution Control Act
Amendments of 1972, Pub. L. 92-500 as amended by the
Clean Water Act of 1977, Pub. L. 95-217 (the "Act");
Clean Water Act, Safe Drinking Water Act, Clean Air
Act, Resource Conservation and Recovery Act: 42 U.S.C.
6905, 6912, 6925, 6927, 6974)
[44 FR 32948, June 7, 1979, as amended at 45 FR 33512,
May 19, 1980; 46 FR 9460, Jan. 28, 1981; 47 FR 52309,
Nov. 19, 1982; 48 FR 14293, Apr. 1, 1983]
§125.31 Criteria.
(a) A request for the establishment of effluent
limitations under this subpart (fundamentally dif-
ferent factors variance) shall be approved only if:
(1) There is an applicable national limit which
is applied in the permit and specifically controls
the pollutant for which alternative effluent limita-
tions or standards have been requested; and
(2) Factors relating to the discharge controlled
by the permit are fundamentally different from
those considered by EPA in establishing the na-
tional limits; and
(3) The request for alternative effluent limita-
tions or standards is made in accordance with the
procedural requirements of part 124.
(b) A request for the establishment of effluent
limitations less stringent than those required by
national limits guidelines shall be approved only
if:
(1) The alternative effluent limitation or stand-
ard requested is no less stringent than justified by
the fundamental difference; and
(2) The alternative effluent limitation or stand-
ard will ensure compliance with sections 208(e)
and 301(b)(l)(C) of the Act; and
(3) Compliance with the national limits (either
by using the technologies upon which the national
limits are based or by other control alternatives)
would result in:
(i) A removal cost wholly out of proportion to
the removal cost considered during development
of the national limits; or
(ii) A non-water quality environmental impact
(including energy requirements) fundamentally
more adverse than the impact considered during
development of the national limits.
(c) A request for alternative limits more strin-
gent than required by national limits shall be ap-
proved only if:
(1) The alternative effluent limitation or stand-
ard requested is no more stringent than justified by
the fundamental difference; and
(2) Compliance with the alternative effluent lim-
itation or standard would not result in:
(i) A removal cost wholly out of proportion to
the removal cost considered during development
of the national limits; or
(ii) A non-water quality environmental impact
(including energy requirements) fundamentally
more adverse than the impact considered during
development of the national limits.
(d) Factors which may be considered fundamen-
tally different are:
(1) The nature or quality of pollutants contained
in the raw waste load of the applicant's process
wastewater;
[Comment: (1) In determining whether factors concerning
the discharger are fundamentally different, EPA will con-
sider, where relevant, the applicable development docu-
ment for the national limits, associated technical and eco-
nomic data collected for use in developing each respec-
tive national limit, records of legal proceedings, and writ-
ten and printed documentation including records of com-
munication, etc., relevant to the development of respective
national limits which are kept on public file by EPA.
(2) Waste stream(s) associated with a discharger's
process wastewater which were not considered in the de-
velopment of the national limits will not ordinarily be
treated as fundamentally different under paragraph (a) of
this section. Instead, national limits should be applied to
the other streams, and the unique stream(s) should be sub-
ject to limitations based on section 402(a)(l) of the Act.
See§125.2(c)(2).]
(2) The volume of the discharger's process
wastewater and effluent discharged;
(3) Non-water quality environmental impact of
control and treatment of the discharger's raw
waste load;
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§125.57
(4) Energy requirements of the application of
control and treatment technology;
(5) Age, size, land availability, and configura-
tion as they relate to the discharger's equipment or
facilities; processes employed; process changes;
and engineering aspects of the application of con-
trol technology;
(6) Cost of compliance with required control
technololgy.
(e) A variance request or portion of such a re-
quest under this section shall not be granted on
any of the following grounds:
(1) The infeasibility of installing the required
waste treatment equipment within the time the Act
allows.
[Comment: Under this section a variance request may be
approved if it is based on factors which relate to the dis-
charger's ability ultimately to achieve national limits but
not if it is based on factors which merely affect the dis-
charger's ability to meet the statutory deadlines of sec-
tions 301 and 307 of the Act such as labor difficulties,
construction schedules, or unavailability of equipment.]
(2) The assertion that the national limits cannot
be achieved with the appropriate waste treatment
facilities installed, if such assertion is not based on
factor(s) listed in paragraph (d) of this section;
[Comment: Review of the Administrator's action in pro-
mulgating national limits is available only through the ju-
dicial review procedures set forth in section 509(b) of the
Act]
(3) The discharger's ability to pay for the re-
quired waste treatment; or
(4) The impact of a discharge on local receiving
water quality.
(f) Nothing in this section shall be construed to
impair the right of any State or locality under sec-
tion 510 of the Act to impose more stringent limi-
tations than those required by Federal law.
§ 125.32 Method of application.
(a) A written request for a variance under this
subpart shall be submitted in duplicate to the Di-
rector in accordance with part 124, subpart F.
(b) The burden is on the person requesting the
variance to explain that:
(1) Factor(s) listed in § 125.3l(b) regarding the
discharger's facility are fundamentally different
from the factors EPA considered in establishing
the national limits. The requester should refer to
all relevant material and information, such as the
published guideline regulations development docu-
ment, all associated technical and economic data
collected for use in developing each national limit,
all records of legal proceedings, and all written
and printed documentation including records of
communication, etc., relevant to the regulations
which are kept on public file by the EPA;
(2) The alternative limitations requested are jus-
tified by the fundamental difference alleged in
paragraph (b)(l) of this section; and
(3) The appropriate requirements of §125.31
have been met.
Subpart E—Criteria for Granting
Economic Variances From
Best Available Technology
Economically Achievable
Under Section 301 (c) of the
Act—[Reserved]
Subpart F—Criteria for Granting
Water Quality Related Vari-
ances Under Section 301 (g) of
the Act—[Reserved]
Subpart G—Criteria for Modifying
the Secondary Treatment Re-
quirements Under Section
301 (h) of the Clean Water Act
AUTHORITY: Clean Water Act, as amended by the
Clean Water Act of 1977, 33 U.S.C. 1251 et seq., unless
otherwise noted.
SOURCE: 59 FR 40658, Aug. 9, 1994, unless otherwise
noted.
§ 125.56 Scope and purpose.
This subpart establishes the criteria to be ap-
plied by EPA in acting on section 301(h) requests
for modifications to the secondary treatment re-
quirements. It also establishes special permit con-
ditions which must be included in any permit in-
corporating a section 301(h) modification of the
secondary treatment requirements ("section 301(h)
modified permit").
§125.57 Law governing issuance of a
section 301(h) modified permit.
(a) Section 301(h) of the Clean Water Act pro-
vides that:
Administrator, with the concurrence of the State, may
issue a permit under section 402 which modifies the re-
quirements of paragraph (b)(l)(B) of this section with re-
spect to the discharge of any pollutant from a publicly
owned treatment works into marine waters, if the appli-
cant demonstrates to the satisfaction of the Administrator
that—
(1) There is an applicable water quality standard spe-
cific to the pollutant for which the modification is re-
quested, which has been identified under section 304(a)(6)
of this Act;
(2) The discharge of pollutants in accordance with such
modified requirements will not interfere, alone or in com-
bination with pollutants from other sources, with the at-
tainment or maintenance of that water quality which
assures protection of public water supplies and protection
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§125.57
and propagation of a balanced indigenous population of
shellfish, fish, and wildlife, and allows recreational activi-
ties, in and on the water;
(3) The applicant has established a system for monitor-
ing the impact of such discharge on a representative sam-
ple of aquatic biota, to the extent practicable, and the
scope of such monitoring is limited to include only those
scientific investigations which are necessary to study the
effects of the proposed discharge;
(4) Such modified requirements will not result in any
additional requirements on any other point or nonpoint
source;
(5) All applicable pretreatment requirements for sources
introducing waste into such treatment works will be en-
forced;
(6) In the case of any treatment works serving a popu-
lation of 50,000 or more, with respect to any toxic pollut-
ant introduced into such works by an industrial discharger
for which pollutant there is no applicable pretreatment re-
quirement in effect, sources introducing waste into such
works are in compliance with all applicable pretreatment
requirements, the applicant will enforce such require-
ments, and the applicant has in effect a pretreatment pro-
gram which, in combination with the treatment of dis-
charges from such works, removes the same amount of
such pollutant as would be removed if such works were
to apply secondary treatment to discharges and if such
works had no pretreatment program with respect to such
pollutant;
(7) To the extent practicable, the applicant has estab-
lished a schedule of activities designed to eliminate the
entrance of toxic pollutants from nonindustrial sources
into such treatment works;
(8) There will be no new or substantially increased dis-
charges from the point source of the pollutant to which
the modification applies above that volume of discharge
specified in the permit;
(9) The applicant at the time such modification be-
comes effective will be discharging effluent which has re-
ceived at least primary or equivalent treatment and which
meets the criteria established under section 304(a)(l) of
this Act after initial mixing in the waters surrounding or
adjacent to the point at which such effluent is discharged.
For the purposes of this section, the phrase "the dis-
charge of any pollutant into marine waters" refers to a
discharge into deep waters of the territorial sea or the wa-
ters of the contiguous zone, or into saline estuarine waters
where there is strong tidal movement and other
hydrological and geological characteristics which the Ad-
ministrator determines necessary to allow compliance
with paragraph (2) of this section, and section 101(a)(2)
of this Act. For the purposes of paragraph (9), "primary
or equivalent treatment" means treatment by screening,
sedimentation, and skimming adequate to remove at least
30 percent of the biological oxygen demanding material
and of the suspended solids in the treatment works influ-
ent, and disinfection, where appropriate. A municipality
which applies secondary treatment shall be eligible to re-
ceive a permit pursuant to this subsection which modifies
the requirements of paragraph (b)(l)(B) of this section
with respect to the discharge of any pollutant from any
treatment works owned by such municipality into marine
waters. No permit issued under this subsection shall au-
thorize the discharge of sewage sludge into marine wa-
ters. In order for a permit to be issued under this sub-
section for the discharge of a pollutant into marine wa-
ters, such marine waters must exhibit characteristics as-
suring that water providing dilution does not contain sig-
nificant amounts of previously discharged effluent from
such treatment works. No permit issued under this sub-
section shall authorize the discharge of any pollutant into
saline estuarine waters which at the time of application do
not support a balanced indigenous population of shellfish,
fish, and wildlife, or allow recreation in and on the waters
or which exhibit ambient water quality below applicable
water quality standards adopted for the protection of pub-
lic water supplies, shellfish, fish, and wildlife or rec-
reational activities or such other standards necessary to
assure support and protection of such uses. The prohibi-
tion contained in the preceding sentence shall apply with-
out regard to the presence or absence of a causal relation-
ship between such characteristics and the applicant's cur-
rent or proposed discharge. Notwithstanding any other
provisions of this subsection, no permit may be issued
under this subsection for discharge of a pollutant into the
New York Bight Apex consisting of the ocean waters of
the Atlantic Ocean westward of 73 degrees 30 minutes
west longitude and northward of 40 degrees 10 minutes
north latitude.
(b) Section 301(j)(l) of the Clean Water Act
provides that:
Any application filed under this section for a modifica-
tion of the provisions of—
(A) subsection (b)(l)(B) under subsection (h) of this
section shall be filed not later than the 365th day which
begins after the date of enactment of the Municipal
Wastewater Treatment Construction Grant Amendments
of 1981, except that a publicly owned treatment works
which prior to December 31, 1982, had a contractual ar-
rangement to use a portion of the capacity of an ocean
outfall operated by another publicly owned treatment
works which has applied for or received modification
under subsection (h) may apply for a modification of sub-
section (h) in its own right not later than 30 days after
the date of the enactment of the Water Quality Act of
1987.
(c) Section 22(e) of the Municipal Wastewater
Treatment Construction Grant Amendments of
1981, Public Law 97-117, provides that:
The amendments made by this section shall take effect
on the date of enactment of this Act except that no appli-
cant, other than the city of Avalon, California, who ap-
plies after the date of enactment of this Act for a permit
pursuant to subsection (h) of section 301 of the Federal
Water Pollution Control Act which modifies the require-
ments of subsection (b)(l)(B) of section 301 of such Act
shall receive such permit during the one-year period
which begins on the date of enactment of this Act.
(d) Section 303(b)(2) of the Water Quality Act,
Public Law 100-4, provides that:
Section 301(h)(3) shall only apply to modifications and
renewals of modifications which are tentatively or finally
approved after the date of the enactment of this Act.
(e) Section 303(g) of the Water Quality Act
provides that:
The amendments made to sections 301 (h) and (h)(2), as
well as provisions of (h)(6) and (h)(9), shall not apply to
an application for a permit under section 301(h) of the
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§125.58
Federal Water Pollution Control Act which has been ten-
tatively or finally approved by the Administrator before
the date of the enactment of this Act; except that such
amendments shall apply to all renewals of such permits
after such date of enactment.
§125.58 Definitions.
For the purpose of this subpart:
(a) Administrator means the EPA Administrator
or a person designated by the EPA Administrator.
(b) Altered discharge means any discharge other
than a current discharge or improved discharge, as
defined in this regulation.
(c) Applicant means an applicant for a new or
renewed section 301(h) modified permit. Large ap-
plicants have populations contributing to their
POTWs equal to or more than 50,000 people or
average dry weather flows of 5.0 million gallons
per day (mgd) or more; small applicants have con-
tributing populations of less than 50,000 people
and average dry weather flows of less than 5.0
mgd. For the purposes of this definition the con-
tributing population and flows shall be based on
projections for the end of the five-year permit
term. Average dry weather flows shall be the aver-
age daily total discharge flows for the maximum
month of the dry weather season.
(d) Application means a final application pre-
viously submitted in accordance with the June 15,
1979, section 301(h) regulations (44 FR 34784);
an application submitted between December 29,
1981, and December 29, 1982; or a section 301(h)
renewal application submitted in accordance with
these regulations. It does not include a preliminary
application submitted in accordance with the June
15, 1979, section 301(h) regulations.
(e) Application questionnaire means EPA's
"Applicant Questionnaire for Modification of Sec-
ondary Treatment Requirements," published as an
appendix to this subpart.
(f) Balanced indigenous population means an
ecological community which:
(1) Exhibits characteristics similar to those of
nearby, healthy communities existing under com-
parable but unpolluted environmental conditions;
or
(2) May reasonably be expected to become re-
established in the polluted water body segment
from adjacent waters if sources of pollution were
removed.
(g) Categorical pretreatment standard means a
standard promulgated by EPA under 40 CFR
Chapter I, Subchapter N.
(h) Current discharge means the volume, com-
position, and location of an applicant's discharge
at the time of permit application.
(i) Improved discharge means the volume, com-
position, and location of an applicant's discharge
following:
(1) Construction of planned outfall improve-
ments, including, without limitation, outfall reloca-
tion, outfall repair, or diffuser modification; or
(2) Construction of planned treatment system
improvements to treatment levels or discharge
characteristics; or
(3) Implementation of a planned program to im-
prove operation and maintenance of an existing
treatment system or to eliminate or control the in-
troduction of pollutants into the applicant's treat-
ment works.
(j) Industrial discharger or industrial source
means any source of nondomestic pollutants regu-
lated under section 307(b) or (c) of the Clean
Water Act which discharges into a POTW.
(k) Modified discharge means the volume, com-
position, and location of the discharge proposed by
the applicant for which a modification under sec-
tion 301(h) of the Act is requested. A modified
discharge may be a current discharge, improved
discharge, or altered discharge.
(1) New York Bight Apex means the ocean wa-
ters of the Atlantic Ocean westward of 73 degrees
30 minutes west longitude and northward of 40
degrees 10 minutes north latitude.
(m) Nonindustrial source means any source of
pollutants which is not an industrial source.
(n) Ocean waters means those coastal waters
landward of the baseline of the territorial seas, the
deep waters of the territorial seas, or the waters of
the contiguous zone. The term "ocean waters" ex-
cludes saline estuarine waters.
(o) Permittee means an NPDES permittee with
an effective section 301(h) modified permit.
(p) Pesticides means demeton, guthion, mala-
thion, mirex, methoxychlor, and parathion.
(q) Pretreatment means the reduction of the
amount of pollutants, the elimination of pollutants,
or the alteration of the nature of pollutant prop-
erties in wastewater prior to or in lieu of discharg-
ing or otherwise introducing such pollutants into a
POTW. The reduction or alteration may be ob-
tained by physical, chemical, or biological proc-
esses, process changes, or by other means, except
as prohibited by 40 CFR part 403.
(r) Primary or equivalent treatment for the pur-
poses of this subpart means treatment by screen-
ing, sedimentation, and skimming adequate to re-
move at least 30 percent of the biochemical oxy-
gen demanding material and of the suspended sol-
ids in the treatment works influent, and disinfec-
tion, where appropriate.
(s) Public water supplies means water distrib-
uted from a public water system.
(t) Public water system means a system for the
provision to the public of piped water for human
consumption, if such system has at least fifteen
(15) service connections or regularly serves at
least twenty-five (25) individuals. This term in-
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§125.59
eludes: (1) Any collection, treatment, storage, and
distribution facilities under the control of the oper-
ator of the system and used primarily in connec-
tion with the system, and (2) Any collection or
pretreatment storage facilities not under the control
of the operator of the system which are used pri-
marily in connection with the system.
(u) Publicly owned treatment works or POTW
means a treatment works, as defined in section
212(2) of the Act, which is owned by a State, mu-
nicipality, or intermunicipal or interstate agency.
(v) Saline estuarine waters means those semi-
enclosed coastal waters which have a free connec-
tion to the territorial sea, undergo net seaward ex-
change with ocean waters, and have salinities
comparable to those of the ocean. Generally, these
waters are near the mouth of estuaries and have
cross-sectional annual mean salinities greater than
twenty-five (25) parts per thousand.
(w) Secondary removal equivalency means that
the amount of a toxic pollutant removed by the
combination of the applicant's own treatment of
its influent and pretreatment by its industrial users
is equal to or greater than the amount of the toxic
pollutant that would be removed if the applicant
were to apply secondary treatment to its discharge
where the discharge has not undergone
pretreatment by the applicant's industrial users.
(x) Secondary treatment means the term as de-
fined in 40 CFR part 133.
(y) Shellfish, fish, and wildlife means any bio-
logical population or community that might be ad-
versely affected by the applicant's modified dis-
charge.
(z) Stressed waters means those ocean waters
for which an applicant can demonstrate to the sat-
isfaction of the Administrator, that the absence of
a balanced indigenous population is caused solely
by human perturbations other than the applicant's
modified discharge.
(aa) Toxic pollutants means those substances
listed in 40 CFR 401.15.
(bb) Water quality criteria means scientific data
and guidance developed and periodically updated
by EPA under section 304(a)(l) of the Clean
Water Act, which are applicable to marine waters.
(cc) Water quality standards means applicable
water quality standards which have been approved,
left in effect, or promulgated under section 303 of
the Clean Water Act.
(dd) Zone of initial dilution (ZID) means the re-
gion of initial mixing surrounding or adjacent to
the end of the outfall pipe or diffuser ports, pro-
vided that the ZID may not be larger than allowed
by mixing zone restrictions in applicable water
quality standards.
§125.59 General.
(a) Basis for application. An application under
this subpart shall be based on a current, improved,
or altered discharge into ocean waters or saline es-
tuarine waters.
(b) Prohibitions. No section 301(h) modified
permit shall be issued:
(1) Where such issuance would not assure com-
pliance with all applicable requirements of this
subpart and part 122;
(2) For the discharge of sewage sludge;
(3) Where such issuance would conflict with ap-
plicable provisions of State, local, or other Federal
laws or Executive Orders. This includes compli-
ance with the Coastal Zone Management Act of
1972, as amended, 16 U.S.C. 1451 et seq.; the En-
dangered Species Act of 1973, as amended, 16
U.S.C. 1531 et seq.; and Title III of the Marine
Protection, Research and Sanctuaries Act, as
amended, 16 U.S.C. 1431 et seq.;
(4) Where the discharge of any pollutant enters
into saline estuarine waters which at the time of
application do not support a balanced indigenous
population of shellfish, fish, and wildlife, or allow
recreation in and on the waters or which exhibit
ambient water quality below applicable water
quality standards adopted for the protection of
public water supplies, shellfish, fish, and wildlife
or recreational activities or such other standards
necessary to assure support and protection of such
uses. The prohibition contained in the preceding
sentence shall apply without regard to the presence
or absence of a causal relationship between such
characteristics and the applicant's current or pro-
posed discharge; or
(5) Where the discharge of any pollutant is into
the New York Bight Apex.
(c) Applications. Each applicant for a modified
permit under this subpart shall submit an applica-
tion to EPA signed in compliance with 40 CFR
part 122, subpart B, which shall contain:
(1) A signed, completed NPDES Application
Standard form A, parts I, II, III;
(2) A completed Application Questionnaire;
(3) The certification in accordance with 40 CFR
122.22(d);
(4) In addition to the requirements of
§125.59(c) (1) through (3), applicants for permit
renewal shall support continuation of the modifica-
tion by supplying to EPA the results of studies
and monitoring performed in accordance with
§ 125.63 during the life of the permit. Upon a
demonstration meeting the statutory criteria and
requirements of this subpart, the permit may be re-
newed under the applicable procedures of 40 CFR
part 124.
(d) Revisions to applications. (1) POTWs which
submitted applications in accordance with the June
15, 1979, regulations (44 FR 34784) may revise
10
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§125.59
their applications one time following a tentative
decision to propose changes to treatment levels
and/or outfall and diffuser location and design in
accordance with § 125.59(f)(2)(i); and
(2) Other applicants may revise their applica-
tions one time following a tentative decision to
propose changes to treatment levels and/or outfall
and diffuser location and design in accordance
with § 125.59(f)(2)(i). Revisions by such appli-
cants which propose downgrading treatment levels
and/or outfall and diffuser location and design
must be justified on the basis of substantial
changes in circumstances beyond the applicant's
control since the time of application submission.
(3) Applicants authorized or requested to submit
additional information under § 125.59(g) may sub-
mit a revised application in accordance with
§125.59(f)(2)(ii) where such additional informa-
tion supports changes in proposed treatment levels
and/or outfall location and diffuser design. The op-
portunity for such revision shall be in addition to
the one-time revision allowed under §125.59(d)
(1) and (2).
(4) POTWs which revise their applications
must:
(i) Modify their NPDES form and Application
Questionnaire as needed to ensure that the infor-
mation filed with their application is correct and
complete;
(ii) Provide additional analysis and data as
needed to demonstrate compliance with this sub-
part;
(iii) Obtain new State determinations under
§§ 125.61(b)(2) and 125.64(b); and
(iv) Provide the certification described in para-
graph (c)(3) of this section.
(5) Applications for permit renewal may not be
revised.
(e) Submittal of additional information to dem-
onstrate compliance with §§125.60 and 125.65.
(1) On or before the deadline established in para-
graph (f)(3) of this section, applicants shall submit
a letter of intent to demonstrate compliance with
§§ 125.60 and 125.65. The letter of intent is sub-
ject to approval by the Administrator based on the
requirements of this paragraph and paragraph
(f)(3) of this section. The letter of intent shall con-
sist of the following:
(i) For compliance with § 125.60: (A) A de-
scription of the proposed treatment system which
upgrades treatment to satisfy the requirements of
§125.60.
(B) A project plan, including a schedule for data
collection and for achieving compliance with
§ 125.60. The project plan shall include dates for
design and construction of necessary facilities,
submittal of influent/effluent data, and submittal of
any other information necessary to demonstrate
compliance with § 125.60. The Administrator will
review the project plan and may require revisions
prior to authorizing submission of the additional
information.
(ii) For compliance with §125.65: (A) A deter-
mination of what approach will be used to achieve
compliance with § 125.65.
(B) A project plan for achieving compliance.
The project plan shall include any necessary data
collection activities, submittal of additional infor-
mation, and/or development of appropriate
pretreatment limits to demonstrate compliance
with § 125.65. The Administrator will review the
project plan and may require revisions prior to
submission of the additional information.
(iii) POTWs which submit additional informa-
tion must:
(A) Modify their NPDES form and Application
Questionnaire as needed to ensure that the infor-
mation filed with their application is correct and
complete;
(B) Obtain new State determinations under
§§ 125.61(b)(2) and 125.64(b); and
(C) Provide the certification described in para-
graph (c)(3) of this section.
(2) The information required under this para-
graph must be submitted in accordance with the
schedules in § 125.59(f)(3)(ii). If the applicant
does not meet these schedules for compliance,
EPA may deny the application on that basis.
(f) Deadlines and distribution—(1) Applica-
tions.^) The application for an original 301(h) per-
mit for POTWs which directly discharges effluent
into saline waters shall be submitted to the appro-
priate EPA Regional Administrator no later than
December 29, 1982.
(ii) The application for renewal of a 301(h)
modified permit shall be submitted no less than
180 days prior to the expiration of the existing
permit, unless permission for a later date has been
granted by the Administrator. (The Administrator
shall not grant permission for applications to be
submitted later than the expiration date of the ex-
isting permit.)
(iii) A copy of the application shall be provided
to the State and interstate agency(s) authorized to
provide certification/concurrence under §§124.53
through 124.55 on or before the date the applica-
tion is submitted to EPA.
(2) Revisions to Applications, (i) Applicants de-
siring to revise their applications under §125.59
(d)(l) or (d)(2) must:
(A) Submit to the appropriate Regional Admin-
istrator a letter of intent to revise their application
either within 45 days of the date of EPA's ten-
tative decision on their original application or
within 45 days of November 26, 1982, whichever
is later. Following receipt by EPA of a letter of
intent, further EPA proceedings on the tentative
decision under 40 CFR part 124 will be stayed.
11
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§125.59
(B) Submit the revised application as described
for new applications in § 125.59(f)(l) either within
one year of the date of EPA's tentative decision
on their original application or within one year of
November 26, 1982, if a tentative decision has al-
ready been made, whichever is later.
(ii) Applicants desiring to revise their applica-
tions under § 125.59(d)(3) must submit the revised
application as described for new applications in
§ 125.59(f)(l) concurrent with submission of the
additional information under § 125.59(g).
(3) Deadline for additional information to dem-
onstrate compliance with §§ 125.60 and 125.65.
(i) A letter of intent required under
§ 125.59(e)(l) must be submitted by the following
dates: for permittees with 301(h) modifications or
for applicants to which a tentative or final decision
has been issued, November 7, 1994; for all others,
within 90 days after the Administrator issues a
tentative decision on an application. Following re-
ceipt by EPA of a letter of intent containing the
information required in § 125.59(e)(l), further
EPA proceedings on the tentative decision under
40 CFR part 124 will be stayed.
(ii) The project plan submitted under
§ 125.59(e)(l) shall ensure that the applicant meets
all the requirements of §§ 125.60 and 125.65 by
the following deadlines:
(A) By August 9, 1996 for applicants that are
not grandfathered under § 125.59(j).
(B) At the time of permit renewal or by August
9, 1996, whichever is later, for applicants that are
grandfathered under § 125.59(j).
(4) State determination deadline. State deter-
minations, as required by §§ 125.61(b)(2) and
125.64(b) shall be filed by the applicant with the
appropriate Regional Administrator no later than
90 days after submission of the revision to the ap-
plication or additional information to EPA. Exten-
sions to this deadline may be provided by EPA
upon request. However, EPA will not begin re-
view of the revision to the application or addi-
tional information until a favorable State deter-
mination is received by EPA. Failure to provide
the State determination within the timeframe re-
quired by this paragraph (f)(4) is a basis for denial
of the application.
(g)(l) The Administrator may authorize or re-
quest an applicant to submit additional information
by a specified date not to exceed one year from
the date of authorization or request.
(2) Applicants seeking authorization to submit
additional information on current/modified dis-
charge characteristics, water quality, biological
conditions or oceanographic characteristics must:
(i) Demonstrate that they made a diligent effort
to provide such information with their application
and were unable to do so, and
(ii) Submit a plan of study, including a sched-
ule, for data collection and submittal of the addi-
tional information. EPA will review the plan of
study and may require revisions prior to authoriz-
ing submission of the additional information.
(h) Tentative decisions on section 301(h) modi-
fications. The Administrator shall grant a tentative
approval or a tentative denial of a section 301(h)
modified permit application. To qualify for a ten-
tative approval, the applicant shall demonstrate to
the satisfaction of the Administrator that it is using
good faith means to come into compliance with all
the requirements of this subpart and that it will
meet all such requirements based on a schedule
approved by the Administrator. For compliance
with §§ 125.60 and 125.65, such schedule shall be
in accordance with § 125.59(f)(3)(ii).
(i) Decisions on section 301 (h) modifications.
(1) The decision to grant or deny a section 301(h)
modification shall be made by the Administrator
and shall be based on the applicant's demonstra-
tion that it has met all the requirements of
§§ 125.59 through 125.68.
(2) No section 301(h) modified permit shall be
issued until the appropriate State certification/con-
currence is granted or waived pursuant to § 124.54
or if the State denies certification/ concurrence
pursuant to § 124.54.
(3) In the case of a modification issued to an
applicant in a State administering an approved per-
mit program under 40 CFR part 123, the State Di-
rector may:
(i) Revoke an existing permit as of the effective
date of the EPA issued section 301(h) modified
permit; and
(ii) Cosign the section 301(h) modified permit if
the Director has indicated an intent to do so in the
written concurrence.
(4) Any section 301(h) modified permit shall:
(i) Be issued in accordance with the procedures
set forth in 40 CFR part 124, except that, because
section 301(h) permits may be issued only by
EPA, the terms "Administrator or a person des-
ignated by the Administrator" shall be substituted
for the term "Director" as appropriate; and
(ii) Contain all applicable terms and conditions
set forth in 40 CFR part 122 and § 125.68.
(5) Appeals of section 301(h) determinations
shall be governed by the procedures in 40 CFR
part 124.
(j) Grandfathering provision. Applicants that re-
ceived tentative or final approval for a section
301(h) modified permit prior to February 4, 1987,
are not subject to § 125.60, the water quality cri-
teria provisions of § 125.62(a)(l), or § 125.65 until
the time of permit renewal. In addition, if permit
renewal will occur prior to August 9, 1996, appli-
cants may have additional time to come into com-
pliance with §§ 125.60 and 125.65, as determined
12
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§125.62
appropriate by EPA on a case-by-case basis. Such
additional time, however, shall not extend beyond
August 9, 1996. This paragraph does not apply to
any application that was initially tentatively ap-
proved, but as to which EPA withdrew its ten-
tative approval or issued a tentative denial prior to
February 4, 1987.
§125.60 Primary or equivalent treat-
ment requirements.
(a) The applicant shall demonstrate that, at the
time its modification becomes effective, it will be
discharging effluent that has received at least pri-
mary or equivalent treatment.
(b) The applicant shall perform monitoring to
ensure, based on the monthly average results of
the monitoring, that the effluent it discharges has
received primary or equivalent treatment.
(c)(l) An applicant may request that the dem-
onstration of compliance with the requirement
under paragraph (b) of this section to provide 30
percent removal of BOD be allowed on an averag-
ing basis different from monthly (e.g., quarterly),
subject to the demonstrations provided in para-
graphs (c)(l)(i), (ii) and (iii) of this section. The
Administrator may approve such requests if the
applicant demonstrates to the Administrator's sat-
isfaction that:
(i) The applicant's POTW is adequately de-
signed and well operated;
(ii) The applicant will be able to meet all re-
quirements under section 301(h) of the CWA and
these subpart G regulations with the averaging
basis selected; and
(iii) The applicant cannot achieve 30 percent re-
moval on a monthly average basis because of cir-
cumstances beyond the applicant's control. Cir-
cumstances beyond the applicant's control may in-
clude seasonally dilute influent BOD concentra-
tions due to relatively high (although nonexces-
sive) inflow and infiltration; relatively high soluble
to insoluble BOD ratios on a fluctuating basis; or
cold climates resulting in cold influent. Cir-
cumstances beyond the applicant's control shall
not include less concentrated wastewater due to
excessive inflow and infiltration (I&I). The deter-
mination of whether the less concentrated
wastewater is the result of excessive I&I will be
based on the definition of excessive I&I in 40
CFR 35.2005(b)(16) plus the additional criterion
that inflow is nonexcessive if the total flow to the
POTW (i.e., wastewater plus inflow plus infiltra-
tion) is less than 275 gallons per capita per day.
(2) In no event shall averaging on a less fre-
quent basis than annually be allowed.
[59 FR 40658, Aug. 9, 1994, as amended at 61 FR
45833, Aug. 29, 1996]
§125.61 Existence of and compliance
with applicable water quality
standards.
(a) There must exist a water quality standard or
standards applicable to the pollutant(s) for which
a section 301(h) modified permit is requested, in-
cluding:
(1) Water quality standards for biochemical ox-
ygen demand or dissolved oxygen;
(2) Water quality standards for suspended sol-
ids, turbidity, light transmission, light scattering,
or maintenance of the euphotic zone; and
(3) Water quality standards for pH.
(b) The applicant must: (1) Demonstrate that the
modified discharge will comply with the above
water quality standard(s); and
(2) Provide a determination signed by the State
or interstate agency(s) authorized to provide cer-
tification under §§ 124.53 and 124.54 that the pro-
posed modified discharge will comply with appli-
cable provisions of State law including water qual-
ity standards. This determination shall include a
discussion of the basis for the conclusion reached.
§125.62 Attainment or maintenance of
water quality which assures protec-
tion of public water supplies;
assures the protection and propaga-
tion of a balanced indigenous popu-
lation of shellfish, fish, and wildlife;
and allows recreational activities.
(a) Physical characteristics of discharge. (1) At
the time the 301(h) modification becomes effec-
tive, the applicant's outfall and diffuser must be
located and designed to provide adequate initial
dilution, dispersion, and transport of wastewater
such that the discharge does not exceed at and be-
yond the zone of initial dilution:
(i) All applicable water quality standards; and
(ii) All applicable EPA water quality criteria for
pollutants for which there is no applicable EPA-
approved water quality standard that directly cor-
responds to the EPA water quality criterion for the
pollutant.
(iii) For purposes of paragraph (a)(l)(ii) of this
section, a State water quality standard "directly
corresponds" to an EPA water quality criterion
only if:
(A) The State water quality standard addresses
the same pollutant as the EPA water quality cri-
terion and
(B) The State water quality standard specifies a
numeric criterion for that pollutant or State objec-
tive methodology for deriving such a numeric cri-
terion.
(iv) The evaluation of compliance with para-
graphs (a)(l) (i) and (ii) of this section shall be
based upon conditions reflecting periods of maxi-
mum stratification and during other periods when
discharge characteristics, water quality, biological
13
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§125.62
seasons, or oceanographic conditions indicate
more critical situations may exist.
(2) The evaluation under paragraph (a)(l)(ii) of
this section as to compliance with applicable sec-
tion 304(a)(l) water quality criteria shall be based
on the following:
(i) For aquatic life criteria: The pollutant con-
centrations that must not be exceeded are the
numeric ambient values, if any, specified in the
EPA section 304(a)(l) water quality criteria docu-
ments as the concentrations at which acute and
chronic toxicity to aquatic life occurs or that are
otherwise identified as the criteria to protect aquat-
ic life.
(ii) For human health criteria for carcinogens:
(A) For a known or suspected carcinogen, the Ad-
ministrator shall determine the pollutant concentra-
tion that shall not be exceeded. To make this de-
termination, the Administrator shall first determine
a level of risk associated with the pollutant that is
acceptable for purposes of this section. The Ad-
ministrator shall then use the information in the
section 304(a)(l) water quality criterion document,
supplemented by all other relevant information, to
determine the specific pollutant concentration that
corresponds to the identified risk level.
(B) For purposes of paragraph (a)(2)(ii)(A) of
this section, an acceptable risk level will be a sin-
gle level that has been consistently used, as deter-
mined by the Administrator, as the basis of the
State's EPA-approved water quality standards for
carcinogenic pollutants. Alternatively, the Admin-
istrator may consider a State's recommendation to
use a risk level that has been otherwise adopted or
formally proposed by the State. The State rec-
ommendation must demonstrate, to the satisfaction
of the Administrator, that the recommended level
is sufficiently protective of human health in light
of the exposure and uncertainty factors associated
with the estimate of the actual risk posed by the
applicant's discharge. The State must include with
its demonstration a showing that the risk level se-
lected is based on the best information available
and that the State has held a public hearing to re-
view the selection of the risk level, in accordance
with provisions of State law and public participa-
tion requirements of 40 CFR part 25. If the Ad-
ministrator neither determines that there is a con-
sistently used single risk level nor accepts a risk
level recommended by the State, then the Admin-
istrator shall otherwise determine an acceptable
risk level based on all relevant information.
(iii) For human health criteria for noncarcino-
gens: For noncarcinogenic pollutants, the pollutant
concentrations that must not be exceeded are the
numeric ambient values, if any, specified in the
EPA section 304(a)(l) water quality criteria docu-
ments as protective against the potential toxicity of
the contaminant through ingestion of contaminated
aquatic organisms.
(3) The requirements of paragraphs (a)(l) and
(a)(2) of this section apply in addition to, and do
not waive or substitute for, the requirements of
§125.61.
(b) Impact of discharge on public water sup-
plies. (1) The applicant's modified discharge must
allow for the attainment or maintenance of water
quality which assures protection of public water
supplies.
(2) The applicant's modified discharge must
not:
(i) Prevent a planned or existing public water
supply from being used, or from continuing to be
used, as a public water supply; or
(ii) Have the effect of requiring treatment over
and above that which would be necessary in the
absence of such discharge in order to comply with
local and EPA drinking water standards.
(c) Biological impact of discharge. (1) The ap-
plicant's modified discharge must allow for the at-
tainment or maintenance of water quality which
assures protection and propagation of a balanced
indigenous population of shellfish, fish, and wild-
life.
(2) A balanced indigenous population of shell-
fish, fish, and wildlife must exist:
(i) Immediately beyond the zone of initial dilu-
tion of the applicant's modified discharge; and
(ii) In all other areas beyond the zone of initial
dilution where marine life is actually or potentially
affected by the applicant's modified discharge.
(3) Conditions within the zone of initial dilution
must not contribute to extreme adverse biological
impacts, including, but not limited to, the destruc-
tion of distinctive habitats of limited distribution,
the presence of disease epicenter, or the stimula-
tion of phytoplankton blooms which have adverse
effects beyond the zone of initial dilution.
(4) In addition, for modified discharges into sa-
line estuarine water:
(i) Benthic populations within the zone of initial
dilution must not differ substantially from the bal-
anced indigenous populations which exist imme-
diately beyond the boundary of the zone of initial
dilution;
(ii) The discharge must not interfere with estua-
rine migratory pathways within the zone of initial
dilution; and
(iii) The discharge must not result in the accu-
mulation of toxic pollutants or pesticides at levels
which exert adverse effects on the biota within the
zone of initial dilution.
(d) Impact of discharge on recreational activi-
ties. (1) The applicant's modified discharge must
allow for the attainment or maintenance of water
quality which allows for recreational activities be-
yond the zone of initial dilution, including, with-
14
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§125.63
out limitation, swimming, diving, boating, fishing,
and picnicking, and sports activities along shore-
lines and beaches.
(2) There must be no Federal, State, or local re-
strictions on recreational activities within the vi-
cinity of the applicant's modified outfall unless
such restrictions are routinely imposed around
sewage outfalls. This exception shall not apply
where the restriction would be lifted or modified,
in whole or in part, if the applicant were discharg-
ing a secondary treatment effluent.
(e) Additional requirements for applications
based on improved or altered discharges. An ap-
plication for a section 301(h) modified permit on
the basis of an improved or altered discharge must
include:
(1) A demonstration that such improvements or
alterations have been thoroughly planned and stud-
ied and can be completed or implemented expedi-
tiously;
(2) Detailed analyses projecting changes in av-
erage and maximum monthly flow rates and com-
position of the applicant's discharge which are ex-
pected to result from proposed improvements or
alterations;
(3) The assessments required by paragraphs (a)
through (d) of this section based on its current dis-
charge; and
(4) A detailed analysis of how the applicant's
planned improvements or alterations will comply
with the requirements of paragraphs (a) through
(d) of this section.
(f) Stressed waters. An applicant must dem-
onstrate compliance with paragraphs (a) through
(e) of this section not only on the basis of the ap-
plicant's own modified discharge, but also taking
into account the applicant's modified discharge in
combination with pollutants from other sources.
However, if an applicant which discharges into
ocean waters believes that its failure to meet the
requirements of paragraphs (a) through (e) of this
section is entirely attributable to conditions result-
ing from human perturbations other than its modi-
fied discharge (including, without limitation, other
municipal or industrial discharges, nonpoint source
runoff, and the applicant's previous discharges),
the applicant need not demonstrate compliance
with those requirements if it demonstrates, to the
satisfaction of the Administrator, that its modified
discharge does not or will not:
(1) Contribute to, increase, or perpetuate such
stressed conditions;
(2) Contribute to further degradation of the
biota or water quality if the level of human pertur-
bation from other sources increases; and
(3) Retard the recovery of the biota or water
quality if the level of human perturbation from
other sources decreases.
§ 125.63 Establishment of a monitoring
program.
(a) General requirements. (1) The applicant
must:
(i) Have a monitoring program that is:
(A) Designed to provide data to evaluate the
impact of the modified discharge on the marine
biota, demonstrate compliance with applicable
water quality standards or water quality criteria, as
applicable, and measure toxic substances in the
discharge, and
(B) Limited to include only those scientific in-
vestigations necessary to study the effects of the
proposed discharge;
(ii) Describe the sampling techniques, schedules
and locations (including appropriate control sites),
analytical techniques, quality control and verifica-
tion procedures to be used in the monitoring pro-
gram;
(iii) Demonstrate that it has the resources nec-
essary to implement the program upon issuance of
the modified permit and to carry it out for the life
of the modified permit; and
(iv) Determine the frequency and extent of the
monitoring program taking into consideration the
applicant's rate of discharge, quantities of toxic
pollutants discharged, and potentially significant
impacts on receiving water quality, marine biota,
and designated water uses.
(2) The Administrator may require revision of
the proposed monitoring program before issuing a
modified permit and during the term of any modi-
fied permit.
(b) Biological monitoring program. The biologi-
cal monitoring program for both small and large
applicants shall provide data adequate to evaluate
the impact of the modified discharge on the ma-
rine biota.
(1) Biological monitoring shall include to the
extent practicable:
(i) Periodic surveys of the biological commu-
nities and populations which are most likely af-
fected by the discharge to enable comparisons
with baseline conditions described in the applica-
tion and verified by sampling at the control sta-
tions/reference sites during the periodic surveys;
(ii) Periodic determinations of the accumulation
of toxic pollutants and pesticides in organisms and
examination of adverse effects, such as disease,
growth abnormalities, physiological stress, or
death;
(iii) Sampling of sediments in areas of solids
deposition in the vicinity of the ZID, in other
areas of expected impact, and at appropriate ref-
erence sites to support the water quality and bio-
logical surveys and to measure the accumulation
of toxic pollutants and pesticides; and
15
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§125.64
(iv) Where the discharge would affect commer-
cial or recreational fisheries, periodic assessments
of the conditions and productivity of fisheries.
(2) Small applicants are not subject to the re-
quirements of paragraph (b)(l) (ii) through (iv) of
this section if they discharge at depths greater than
10 meters and can demonstrate through a sus-
pended solids deposition analysis that there will be
negligible seabed accumulation in the vicinity of
the modified discharge.
(3) For applicants seeking a section 301(h)
modified permit based on:
(i) A current discharge, biological monitoring
shall be designed to demonstrate ongoing compli-
ance with the requirements of § 125.62(c);
(ii) An improved discharge or altered discharge
other than outfall relocation, biological monitoring
shall provide baseline data on the current impact
of the discharge and data which demonstrate, upon
completion of improvements or alterations, that the
requirements of § 125.62(c) are met; or
(iii) An improved or altered discharge involving
outfall relocation, the biological monitoring shall:
(A) Include the current discharge site until such
discharge ceases; and
(B) Provide baseline data at the relocation site
to demonstrate the impact of the discharge and to
provide the basis for demonstrating that require-
ments of § 125.62(c) will be met.
(c) Water quality monitoring program. The
water quality monitoring program shall to the ex-
tent practicable:
(1) Provide adequate data for evaluating compli-
ance with water quality standards or water quality
criteria, as applicable under § 125.62(a)(l);
(2) Measure the presence of toxic pollutants
which have been identified or reasonably may be
expected to be present in the discharge.
(d) Effluent monitoring program. (1) In addition
to the requirements of 40 CFR part 122, to the ex-
tent practicable, monitoring of the POTW effluent
shall provide quantitative and qualitative data
which measure toxic substances and pesticides in
the effluent and the effectiveness of the toxic con-
trol program.
(2) The permit shall require the collection of
data on a frequency specified in the permit to pro-
vide adequate data for evaluating compliance with
the percent removal efficiency requirements under
§125.60.
§125.64 Effect of the discharge on
other point and nonpoint sources.
(a) No modified discharge may result in any ad-
ditional pollution control requirements on any
other point or nonpoint source.
(b) The applicant shall obtain a determination
from the State or interstate agency(s) having au-
thority to establish wasteload allocations indicating
whether the applicant's discharge will result in an
additional treatment pollution control, or other re-
quirement on any other point or nonpoint sources.
The State determination shall include a discussion
of the basis for its conclusion.
§125.65 Urban area pretreatment pro-
gram.
(a) Scope and applicability. (1) The require-
ments of this section apply to each POTW serving
a population of 50,000 or more that has one or
more toxic pollutants introduced into the POTW
by one or more industrial dischargers and that
seeks a section 301(h) modification.
(2) The requirements of this section apply in ad-
dition to any applicable requirements of 40 CFR
part 403, and do not waive or substitute for the
part 403 requirements in any way.
(b) Toxic pollutant control. (1) As to each toxic
pollutant introduced by an industrial discharger,
each POTW subject to the requirements of this
section shall demonstrate that it either:
(i) Has an applicable pretreatment requirement
in effect in accordance with paragraph (c) of this
section; or
(ii) Has in effect a program that achieves sec-
ondary removal equivalency in accordance with
paragraph (d) of this section.
(2) Each applicant shall demonstrate that indus-
trial sources introducing waste into the applicant's
treatment works are in compliance with all appli-
cable pretreatment requirements, including numeri-
cal standards set by local limits, and that it will
enforce those requirements.
(c) Applicable pretreatment requirement. (1) An
applicable pretreatment requirement under para-
graph (b)(l)(i) of this section with respect to a
toxic pollutant shall consist of the following:
(i) As to a toxic pollutant introduced into the
applicant's treatment works by an industrial dis-
charger for which there is no applicable categor-
ical pretreatment standard for the toxic pollutant,
a local limit or limits on the toxic pollutant as
necessary to satisfy the requirements of 40 CFR
part 403; and
(ii) As to a toxic pollutant introduced into the
applicant's treatment works by an industrial dis-
charger that is subject to a categorical pretreatment
standard for the toxic pollutant, the categorical
standard and a local limit or limits as necessary to
satisfy the requirements of 40 CFR part 403;
(iii) As to a toxic pollutant introduced into the
applicant's treatment works by an industrial dis-
charger for which there is no applicable categor-
ical pretreatment standard for the toxic pollutant,
and the 40 CFR part 403 analysis on the toxic pol-
lutant shows that no local limit is necessary, the
applicant shall demonstrate to EPA on an annual
basis during the term of the permit through contin-
16
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§125.66
ued monitoring and appropriate technical review
that a local limit is not necessary, and, where ap-
propriate, require industrial management practices
plans and other pollution prevention activities to
reduce or control the discharge of each such pol-
lutant by industrial dischargers to the POTW. If
such monitoring and technical review of data indi-
cate that a local limit is needed, the POTW shall
establish and implement a local limit.
(2) Any local limits developed to meet the re-
quirements of paragraphs (b)(l)(i) and (c)(l) of
this section shall be:
(i) Consistent with all applicable requirements
of 40 CFR part 403 and
(ii) Subject to approval by the Administrator as
part of the 301(h) application review. The Admin-
istrator may require such local limits to be revised
as necessary to meet the requirements of this sec-
tion or 40 CFR part 403.
(d) Secondary removal equivalency. An appli-
cant shall demonstrate that it achieves secondary
removal equivalency through the use of a second-
ary treatment pilot (demonstration) plant at the ap-
plicant's facility which provides an empirical de-
termination of the amount of a toxic pollutant re-
moved by the application of secondary treatment
to the applicant's influent where the applicant's in-
fluent has not been pretreated. Alternatively, an
applicant may make this determination using influ-
ent that has received industrial pretreatment, not-
withstanding the definition of secondary removal
equivalency in §125.58(w). The NPDES permit
shall include effluent limits based on the data from
the secondary equivalency demonstration when
those limits are more stringent than effluent limits
based on State water quality standards or water
quality criteria, if applicable, or are otherwise re-
quired to assure that all applicable environmental
protection criteria are met. Once such effluent lim-
its are established in the NPDES permit, the
POTW may either establish local limits or perform
additional treatment at the POTW or a combina-
tion of the two to achieve the permit limit.
§ 125.66 Toxics control program.
(a) Chemical analysis. (1) The applicant shall
submit at the time of application a chemical analy-
sis of its current discharge for all toxic pollutants
and pesticides as defined in § 125.58(aa) and (p).
The analysis shall be performed on two 24-hour
composite samples (one dry weather and one wet
weather). Applicants may supplement or substitute
chemical analyses if composition of the supple-
mental or substitute samples typifies that which
occurs during dry and wet weather conditions.
(2) Unless required by the State, this require-
ment shall not apply to any small section 301(h)
applicant which certifies that there are no known
or suspected sources of toxic pollutants or pes-
ticides and documents the certification with an in-
dustrial user survey as described by 40 CFR
403.8(f)(2).
(b) Identification of sources. The applicant shall
submit at the time of application an analysis of the
known or suspected sources of toxic pollutants or
pesticides identified in § 125.66(a). The applicant
shall to the extent practicable categorize the
sources according to industrial and nonindustrial
types.
(c) Industrial pretreatment requirements. (1) An
applicant that has known or suspected industrial
sources of toxic pollutants shall have an approved
pretreatment program in accordance with 40 CFR
part 403.
(2) This requirement shall not apply to any ap-
plicant which has no known or suspected indus-
trial sources of toxic pollutants or pesticides and
so certifies to the Administrator.
(3) The pretreatment program submitted by the
applicant under this section shall be subject to re-
vision as required by the Administrator prior to is-
suing or renewing any section 301(h) modified
permit and during the term of any such permit.
(4) Implementation of all existing pretreatment
requirements and authorities must be maintained
through the period of development of any addi-
tional pretreatment requirements that may be nec-
essary to comply with the requirements of this
subpart.
(d) Nonindustrial source control program. (1)
The applicant shall submit a proposed public edu-
cation program designed to minimize the entrance
of nonindustrial toxic pollutants and pesticides into
its POTW(s) which shall be implemented no later
than 18 months after issuance of a 301(h) modi-
fied permit.
(2) The applicant shall also develop and imple-
ment additional nonindustrial source control pro-
grams on the earliest possible schedule. This re-
quirement shall not apply to a small applicant
which certifies that there are no known or sus-
pected water quality, sediment accumulation, or
biological problems related to toxic pollutants or
pesticides in its discharge.
(3) The applicant's nonindustrial source control
programs under paragraph (d)(2) of this section
shall include the following schedules which are to
be implemented no later than 18 months after issu-
ance of a section 301(h) modified permit:
(i) A schedule of activities for identifying non-
industrial sources of toxic pollutants and pes-
ticides; and
(ii) A schedule for the development and imple-
mentation of control programs, to the extent prac-
ticable, for nonindustrial sources of toxic pollut-
ants and pesticides.
(4) Each proposed nonindustrial source control
program and/or schedule submitted by the appli-
17
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§125.67
cant under this section shall be subject to revision
as determined by the Administrator prior to issu-
ing or renewing any section 301(h) modified per-
mit and during the term of any such permit.
§125.67 Increase in effluent volume or
amount of pollutants discharged.
(a) No modified discharge may result in any
new or substantially increased discharges of the
pollutant to which the modification applies above
the discharge specified in the section 301(h) modi-
fied permit.
(b) Where pollutant discharges are attributable
in part to combined sewer overflows, the applicant
shall minimize existing overflows and prevent in-
creases in the amount of pollutants discharged.
(c) The applicant shall provide projections of ef-
fluent volume and mass loadings for any pollut-
ants to which the modification applies in 5-year
increments for the design life of its facility.
§125.68 Special conditions for section
301 (h) modified permits.
Each section 301(h) modified permit issued
shall contain, in addition to all applicable terms
and conditions required by 40 CFR part 122, the
following:
(a) Effluent limitations and mass loadings which
will assure compliance with the requirements of
this subpart;
(b) A schedule or schedules of compliance for:
(1) Pretreatment program development required
by § 125.66(c);
(2) Nonindustrial toxics control program re-
quired by § 125.66(d); and
(3) Control of combined sewer overflows re-
quired by § 125.67.
(c) Monitoring program requirements that in-
clude:
(1) Biomonitoring requirements of § 125.63(b);
(2) Water quality requirements of § 125.63(c);
(3) Effluent monitoring requirements of
§§ 125.60(b), 125.62(c) and (d), and 125.63(d).
(d) Reporting requirements that include the re-
sults of the monitoring programs required by para-
graph (c) of this section at such frequency as pre-
scribed in the approved monitoring program.
APPENDIX TO PART 125 TO SUBPART G—APPLI-
CANT QUESTIONNAIRE FOR MODIFICATION OF
SECONDARY TREATMENT REQUIREMENTS
OMB Control Number 2040-0088 Expires on 2/28/96
Public reporting burden for this collection of information
is estimated to average 1,295 - 19,552 hours per response,
for small and large applicants, respectively. The reporting
burden includes time for reviewing instructions, gathering
data, including monitoring and toxics control activities,
and completing and reviewing the questionnaire. Send
comments regarding the burden estimate or any other as-
pect of this collection, including suggestions for reducing
the burden, to Chief, Information Policy Branch, U.S. En-
vironmental Protection Agency, 401 M St., SW (2136),
Washington, DC 20460 and Office of Management and
Budget, Office of Information and Regulatory Affairs,
Attn: Desk Officer for EPA, Washington, DC 20503.
I. INTRODUCTION
1. This questionnaire is to be submitted by both small
and large applicants for modification of secondary treat-
ment requirements under section 301(h) of the Clean
Water Act (CWA). A small applicant is defined as a
POTW that has a contributing population to its
wastewater treatment facility of less than 50,000 and a
projected average dry weather flow of less than 5.0 mil-
lion gallons per day (mgd, 0.22 cubic meters/sec) [40
CFR 125.58(c)]. A large applicant is defined as a POTW
that has a population contributing to its wastewater treat-
ment facility of at least 50,000 or a projected average dry
weather flow of its discharge of at least 5.0 million gal-
lons per day (mgd, 0.22 cubic meters/sec) [40 CFR
125.58(c)]. The questionnaire is in two sections, a general
information and basic requirements section (part II) and
a technical evaluation section (part III). Satisfactory com-
pletion by small and large dischargers of the appropriate
questions of this questionnaire is necessary to enable EPA
to determine whether the applicant's modified discharge
meets the criteria of section 301 (h) and EPA regulations
(40 CFR part 125, subpart G).
2. Most small applicants should be able to complete the
questionnaire using available information. However, small
POTWs with low initial dilution discharging into shallow
waters or waters with poor dispersion and transport char-
acteristics, discharging near distinctive and susceptible bi-
ological habitats, or discharging substantial quantities of
toxics should anticipate the need to collect additional in-
formation and/or conduct additional analyses to dem-
onstrate compliance with section 301(h) criteria. If there
are questions in this regard, applicants should contact the
appropriate EPA Regional Office for guidance.
3. Guidance for responding to this questionnaire is pro-
vided by the newly amended section 301(h) technical sup-
port document. Where available information is incomplete
and the applicant needs to collect additional data during
the period it is preparing the application or a letter of in-
tent, EPA encourages the applicant to consult with EPA
prior to data collection and submission. Such consultation,
particularly if the applicant provides a project plan, will
help ensure that the proper data are gathered in the most
efficient matter.
4. The notation (L) means large applicants must re-
spond to the question, and (S) means small applicants
must respond.
II. GENERAL INFORMATION AND BASIC DATA
REQUIREMENTS
A. Treatment System Description
1. (L,S) On which of the following are you basing your
application: a current discharge, improved discharge, or
altered discharge, as defined in 40 CFR 125.58? [40 CFR
125.59(a)]
2. (L,S) Description of the Treatment/Outfall System
[40 CFR 125.62(a) and 125.62(e)]
a. Provide detailed descriptions and diagrams of the
treatment system and outfall configuration which you pro-
18
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Pt. 125, Subpt. G, App.
pose to satisfy the requirements of section 301 (h) and 40
CFR part 125, subpart G. What is the total discharge de-
sign flow upon which this application is based?
b. Provide a map showing the geographic location of
proposed outfall(s) (i.e., discharge). What is the latitude
and longitude of the proposed outfall(s)?
c. For a modification based on an improved or altered
discharge, provide a description and diagram of your cur-
rent treatment system and outfall configuration. Include
the current outfall's latitude and longitude, if different
from the proposed outfall.
3. (L,S) Primary or equivalent treatment requirements
[40 CFR 125.60]
a. Provide data to demonstrate that your effluent meets
at least primary or equivalent treatment requirements as
defined in 40 CFR 125.58(r) [40 CFR 125.60]
b. If your effluent does not meet the primary or equiva-
lent treatment requirements, when do you plan to meet
them? Provide a detailed schedule, including design, con-
struction, start-up and full operation, with your applica-
tion. This requirement must be met by the effective date
of the new section 301(h) modified permit.
4. (L,S) Effluent Limitations and Characteristics [40
CFR 125.61(b) and 125.62(e)(2)]
a. Identify the final effluent limitations for five-day
biochemical oxygen demand (BODs), suspended solids,
and pH upon which your application for a modification
is based:
—BOD5 mg/L
—Suspended solids mg/L
—pH (range)
b. Provide data on the following effluent characteristics
for your current discharge as well as for the modified dis-
charge if different from the current discharge:
Flow (m3/sec):
—minimum
—average dry weather
—average wet weather
—maximum
—annual average
BODs (mg/L) for the following plant flows:
—minimum
—average dry weather
—average wet weather
—maximum
—annual average
Suspended solids (mg/L) for the following plant flows:
—minimum
—average dry weather
—average wet weather
—maximum
—annual average
Toxic pollutants and pesticides (ug/L):
—list each toxic pollutant and pesticide
—list each 304(a)(l) criteria and toxic pollutant and pes-
ticide
pH:
—minimum
—maximum
Dissolved oxygen (mg/L, prior to chlorination) for the
following plant flows:
—minimum
—average dry weather
—average wet weather
—maximum
—annual average
Immediate dissolved oxygen demand (mg/L).
5. (L,S) Effluent Volume and Mass Emissions [40 CFR
125.62(e)(2)and 125.67]
a. Provide detailed analyses showing projections of ef-
fluent volume (annual average, m3/sec) and mass loadings
(mt/yr) of BODs and suspended solids for the design life
of your treatment facility in five-year increments. If the
application is based upon an improved or altered dis-
charge, the projections must be provided with and without
the proposed improvements or alterations.
b. Provide projections for the end of your five-year per-
mit term for 1) the treatment facility contributing popu-
lation and 2) the average daily total discharge flow for the
maximum month of the dry weather season.
6. (L,S) Average Daily Industrial Flow (m3/sec). Pro-
vide or estimate the average daily industrial inflow to
your treatment facility for the same time increments as in
question II.A.5 above. [40 CFR 125.66]
7. (L,S) Combined Sewer Overflows [40 CFR
125.67(b)]
a. Does (will) your treatment and collection system in-
clude combined sewer overflows?
b. If yes, provide a description of your plan for mini-
mizing combined sewer overflows to the receiving water.
8. (L,S) Outfall/Diffuser Design. Provide the following
data for your current discharge as well as for the modified
discharge, if different from the current discharge: [40
CFR 125.62(a)(l)]
—Diameter and length of the outfall(s) (meters)
—Diameter and length of the diffuser(s) (meters)
—Angle(s) of port orientation(s) from horizontal (de-
grees)
—Port diameter(s) (meters)
—Orifice contraction coefficient(s), if known
—Vertical distance from mean lower low water (or mean
low water) surface and outfall port(s) centerline (me-
ters)
—Number of ports
—Port spacing (meters)
—Design flow rate for each port, if multiple ports are
used (m3/sec)
B. Receiving Water Description
1. (L,S) Are you applying for a modification based on
a discharge to the ocean [40 CFR 125.58(n)] or to a sa-
line estuary [40 CFR 125.58(v)]? [40 CFR 125.59(a)].
2. (L,S) Is your current discharge or modified discharge
to stressed waters as defined in 40 CFR 125.58(z)? If yes,
what are the pollution sources contributing to the stress?
[40 CFR 125.59(b)(4) and 125.62(f)].
3. (L,S) Provide a description and data on the seasonal
circulation patterns in the vicinity of your current and
modified discharge(s). [40 CFR 125.62(a)].
4. (L) Oceanographic conditions in the vicinity of the
current and proposed modified discharge(s). Provide data
on the following: [40 CFR 125.62(a)].
—Lowest ten percentile current speed (m/sec)
—Predominant current speed (m/sec) and direction (true)
during the four seasons
—Period(s) of maximum stratification (months)
—Period(s) of natural upwelling events (duration and fre-
quency, months)
—Density profiles during period(s) of maximum strati-
fication
19
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Pt. 125, Subpt. G, App.
5. (L,S) Do the receiving waters for your discharge
contain significant amounts of effluent previously dis-
charged from the treatment works for which you are ap-
plying for a section 301(h) modified permit? [40 CFR
125.57(a)(9)]
6. Ambient water quality conditions during the pe-
riod^) of maximum stratification: at the zone of initial di-
lution (ZID) boundary, at other areas of potential impact,
and at control stations. [40 CFR 125.62(a)]
a. (L) Provide profiles (with depth) on the following
for the current discharge location and for the modified
discharge location, if different from the current discharge:
—BOD5 (mg/L)
—Dissolved oxygen (mg/L)
—Suspended solids (mg/L)
-PH
—Temperature (°C)
—Salinity (ppt)
—Transparency (turbidity, percent light transmittance)
—Other significant variables (e.g., nutrients, 304(a)(l)
criteria and toxic pollutants and pesticides, fecal coli-
form bacteria)
b. (S) Provide available data on the following in the vi-
cinity of the current discharge location and for the modi-
fied discharge location, if different from the current dis-
charge: [40 CFR 125.61(b)(l)]
—Dissolved oxygen (mg/L)
—Suspended solids (mg/L)
-PH
—Temperature (°C)
—Salinity (ppt)
—Transparency (turbidity, percent light transmittance)
—Other significant variables (e.g., nutrients, 304(a)(l)
criteria and toxic pollutants and pesticides, fecal coli-
form bacteria)
c. (L,S)Are there other periods when receiving water
quality conditions may be more critical than the period(s)
of maximum stratification? If so, describe these and other
critical periods and data requested in 6.a. for the other
critical penod(s). [40 CFR 125.62(a)(l)].
7. (L) Provide data on steady state sediment dissolved
oxygen demand and dissolved oxygen demand due to re-
suspension of sediments in the vicinity of your current
and modified discharge(s) (mg/L/day).
C. Biological Conditions
1. (L) Provide a detailed description of representative
biological communities (e.g., plankton, macrobenthos,
demersal fish, etc.) in the vicinity of your current and
modified discharge(s): within the ZID, at the ZID bound-
ary, at other areas of potential discharge-related impact,
and at reference (control) sites. Community characteristics
to be described shall include (but not be limited to) spe-
cies composition; abundance; dominance and diversity;
spatial/temporal distribution; growth and reproduction;
disease frequency; trophic structure and productivity pat-
terns; presence of opportunistic species; bioaccumulation
of toxic materials; and the occurrence of mass mortalities.
2. (L,S)a. Are distinctive habitats of limited distribution
(such as kelp beds or coral reefs) located in areas poten-
tially affected by the modified discharge? [40 CFR
125.62(c)]
b. If yes, provide information on type, extent, and loca-
tion of habitats.
3. (L,S)a. Are commercial or recreational fisheries lo-
cated in areas potentially affected by the discharge? [40
CFR 125.62 (c) and (d)]
b. If yes, provide information on types, location, and
value of fisheries.
D. State and Federal Laws [40 CFR 125.61 and
125.62(a)(l)]
1. (L,S) Are there water quality standards applicable to
the following pollutants for which a modification is re-
quested:
—Biochemical oxygen demand or dissolved oxygen?
—Suspended solids, turbidity, light transmission, light
scattering, or maintenance of the euphotic zone?
—pH of the receiving water?
2. (L,S) If yes, what is the water use classification for
your discharge area? What are the applicable standards
for your discharge area for each of the parameters for
which a modification is requested? Provide a copy of all
applicable water quality standards or a citation to where
they can be found.
3. (L,S) Will the modified discharge: [40 CFR
125.59(b)(3)].
—Be consistent with applicable State coastal zone man-
agement program(s) approved under the Coastal Zone
Management Act as amended, 16 U.S.C. 1451 et seq.?
[See 16 U.S.C. 1456(c)(3)(A)]
—Be located in a marine sanctuary designated under Title
III of the Marine Protection, Research, and Sanctuaries
Act (MPRSA) as amended, 16 U.S.C. 1431 et seq., or
in an estuarine sanctuary designated under the Coastal
Zone Management Act as amended, 16 U.S.C. 1461?
If located in a marine sanctuary designated under Title
III of the MPRSA, attach a copy of any certification
or permit required under regulations governing such
marine sanctuary. [See 16 U.S.C. 1432(f)(2)]
—Be consistent with the Endangered Species Act as
amended, 16 U.S.C. 1531 et seq.? Provide the names
of any threatened or endangered species that inhabit or
obtain nutrients from waters that may be affected by
the modified discharge. Identify any critical habitat that
may be affected by the modified discharge and evaluate
whether the modified discharge will affect threatened
or endangered species or modify a critical habitat. [See
16 U.S.C. 1536(a)(2)].
4. (L,S) Are you aware of any State or Federal laws
or regulations (other than the Clean Water Act or the
three statutes identified in item 3 above) or an Executive
Order which is applicable to your discharge? If yes, pro-
vide sufficient information to demonstrate that your modi-
fied discharge will comply with such law(s), regulation(s),
or order(s). [40 CFR 125.59 (b)(3)].
III. TECHNICAL EVALUATION
A. Physical Characteristics of Discharge [40 CFR
125.62(a)]
1. (L,S) What is the critical initial dilution for your cur-
rent and modified discharge(s) during (1) the period(s) of
maximum stratification? and (2) any other critical pe-
riod^) of discharge volume/composition, water quality,
biological seasons, or oceanographic conditions?
2. (L,S) What are the dimensions of the zone of initial
dilution for your modified discharge(s)?
20
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Pt. 125, Subpt. G, App.
3. (L) What are the effects of ambient currents and
stratification on dispersion and transport of the discharge
plume/wastefield?
4. (S) Will there be significant sedimentation of sus-
pended solids in the vicinity of the modified discharge?
5. (L) Sedimentation of suspended solids
a. What fraction of the modified discharge's suspended
solids will accumulate within the vicinity of the modified
discharge?
b. What are the calculated area(s) and rate(s) of sedi-
ment accumulation within the vicinity of the modified
discharge(s) (g/m2/yr)?
c. What is the fate of settleable solids transported be-
yond the calculated sediment accumulation area?
B. Compliance with Applicable Water Quality Standards
and CWA § 304(a)(l) water quality criteria [40 CFR
125.61(b) and 125.62(a)]
1. (L,S) What is the concentration of dissolved oxygen
immediately following initial dilution for the period(s) of
maximum stratification and any other critical period(s) of
discharge volume/composition, water quality, biological
seasons, or oceanographic conditions?
2. (L,S) What is the farfield dissolved oxygen depres-
sion and resulting concentration due to BOD exertion of
the wastefield during the period(s) of maximum stratifica-
tion and any other critical period(s)?
3. (L) What are the dissolved oxygen depressions and
resulting concentrations near the bottom due to steady
sediment demand and resuspension of sediments?
4. (L,S) What is the increase in receiving water sus-
pended solids concentration immediately following initial
dilution of the modified discharge(s)?
5. (L) What is the change in receiving water pH imme-
diately following initial dilution of the modified dis-
charge^)?
6. (L,S) Does (will) the modified discharge comply
with applicable water quality standards for:
—Dissolved oxygen?
—Suspended solids or surrogate standards?
—pH?
7. (L,S) Provide data to demonstrate that all applicable
State water quality standards, and all applicable water
quality criteria established under Section 304(a)(l) of the
Clean Water Act for which there are no directly cor-
responding numerical applicable water quality standards
approved by EPA, are met at and beyond the boundary
of the ZID under critical environmental and treatment
plant conditions in the waters surrounding or adjacent to
the point at which your effluent is discharged. [40 CFR
125.62(a)(l)]
8. (L,S) Provide the determination required by 40 CFR
125.61(b)(2) for compliance with all applicable provisions
of State law, including water quality standards or, if the
determination has not yet been received, a copy of a letter
to the appropriate agency(s) requesting the required deter-
mination.
C. Impact on Public Water Supplies [40 CFR 125.62(b)]
1. (L,S) Is there a planned or existing public water sup-
ply (desalinization facility) intake in the vicinity of the
current or modified discharge?
2. (L,S)Ifyes:
a. What is the location of the intake(s) (latitude and
longitude)?
b. Will the modified discharge(s) prevent the use of in-
take^) for public water supply?
c. Will the modified discharge(s) cause increased treat-
ment requirements for public water supply(s) to meet
local, State, and EPA drinking water standards?
D. Biological Impact of Discharge [40 CFR I25.62(c)]
1. (L,S) Does (will) a balanced indigenous population
of shellfish, fish, and wildlife exist:
—Immediately beyond the ZID of the current and modi-
fied discharge(s)?
—In all other areas beyond the ZID where marine life is
actually or potentially affected by the current and
modified discharge(s)?
2. (L,S) Have distinctive habitats of limited distribution
been impacted adversely by the current discharge and will
such habitats be impacted adversely by the modified dis-
charge?
3. (L,S) Have commercial or recreational fisheries been
impacted adversely by the current discharge (e.g.,
warnings, restrictions, closures, or mass mortalities) or
will they be impacted adversely by the modified dis-
charge?
4. (L,S*) Does the current or modified discharge cause
the following within or beyond the ZID: [40 CFR
125.62(c)(3)]
—Mass mortality of fishes or invertebrates due to oxygen
depletion, high concentrations of toxics, or other condi-
tions?
—An increased incidence of disease in marine organisms?
—An abnormal body burden of any toxic material in ma-
rine organisms?
—Any other extreme, adverse biological impacts?
5. (L,S) For discharges into saline estuarine waters: [40
CFR 125.62 (c)(4)]
—Does or will the current or modified discharge cause
substantial differences in the benthic population within
the ZID and beyond the ZID?
—Does or will the current or modified discharge interfere
with migratory pathways within the ZID?
—Does or will the current or modified discharge result in
bioaccumulation of toxic pollutants or pesticides at lev-
els which exert adverse effects on the biota within the
ZID?
No section (h) modified permit shall be issued where
the discharge enters into stressed saline estuarine waters
as stated in 40 CFR 125.59(b)(4).
6. (L,S) For improved discharges, will the proposed im-
proved discharge(s) comply with the requirements of 40
CFR 125.62(a) through 125.62(d)? [40 CFR 125.62(e)]
7. (L,S) For altered discharge(s), will the altered dis-
charge^) comply with the requirements of 40 CFR
125.62(a) through 125.62(d)? [40 CFR 125.62(e)]
8. (L,S) If your current discharge is to stressed ocean
waters, does or will your current or modified discharge:
[40 CFR 125.62(fl]
—Contribute to, increase, or perpetuate such stressed con-
dition?
—Contribute to further degradation of the biota or water
quality if the level of human perturbation from other
sources increases?
—Retard the recovery of the biota or water quality if
human perturbation from other sources decreases?
21
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§125.70
E. Impacts of Discharge on Recreational Activities [40
CFR 125.62(d)]
1. (L,S) Describe the existing or potential recreational
activities likely to be affected by the modified dis-
charge^) beyond the zone of initial dilution.
2. (L,S) What are the existing and potential impacts of
the modified discharge(s) on recreational activities? Your
answer should include, but not be limited to, a discussion
of fecal coliform bacteria.
3. (L,S) Are there any Federal, State, or local restric-
tions on recreational activities in the vicinity of the modi-
fied discharge(s)? If yes, describe the restrictions and pro-
vide citations to available references.
4. (L,S) If recreational restrictions exist, would such re-
strictions be lifted or modified if you were discharging a
secondary treatment effluent?
F. Establishment of a Monitoring Program [40 CFR
125.63]
1. (L,S) Describe the biological, water quality, and ef-
fluent monitoring programs which you propose to meet
the criteria of 40 CFR 125.63. Only those scientific inves-
tigations that are necessary to study the effects of the pro-
posed discharge should be included in the scope of the
301(h) monitoring program [40 CFR 125.63(a)(l)(i)(B)].
2. (L,S) Describe the sampling techniques, schedules,
and locations, analytical techniques, quality control and
verification procedures to be used.
3. (L,S) Describe the personnel and financial resources
available to implement the monitoring programs upon is-
suance of a modified permit and to carry it out for the
life of the modified permit.
G. Effect of Discharge on Other Point and Nonpoint
Sources [40 CFR 125.64]
1. (L,S) Does (will) your modified discharge(s) cause
additional treatment or control requirements for any other
point or nonpoint pollution source(s)?
2. (L,S) Provide the determination required by 40 CFR
125.64(b) or, if the determination has not yet been re-
ceived, a copy of a letter to the appropriate agency(s) re-
questing the required determination.
H. Toxics Control Program and Urban Area Pretreatment
Program [40 CFR 125.65 and 125.66]
1. a. (L,S) Do you have any known or suspected indus-
trial sources of toxic pollutants or pesticides?
b. (L,S) If no, provide the certification required by 40
CFR 125.66(a)(2) for small dischargers, and required by
40 CFR 125.66(c)(2) for large dischargers.
c. (L,S*) Provide the results of wet and dry weather ef-
fluent analyses for toxic pollutants and pesticides as re-
quired by 40 CFR 125.66(a)(l). (* to the extent prac-
ticable)
d. (L,S*) Provide an analysis of known or suspected in-
dustrial sources of toxic pollutants and pesticides identi-
fied in (l)(c) above as required by 40 CFR 125.66(b). (*
to the extent practicable)
2. (S)a. Are there any known or suspected water qual-
ity, sediment accumulation, or biological problems related
to toxic pollutants or pesticides from your modified dis-
charge^)?
(S)b. If no, provide the certification required by 40
CFR 125.66(d)(2) together with available supporting data.
(S)c. If yes, provide a schedule for development and
implementation of nonindustrial toxics control programs
to meet the requirements of 40 CFR 126.66(d)(3).
(L)d. Provide a schedule for development and imple-
mentation of a nonindustrial toxics control program to
meet the requirements of 40 CFR 125.66(d)(3).
3. (L,S) Describe the public education program you
propose to minimize the entrance of nonindustrial toxic
pollutants and pesticides into your treatment system. [40
CFR 125.66(d)(l)]
4. (L, S) Do you have an approved industrial
pretreatment program?
a. If yes, provide the date of EPA approval.
b. If no, and if required by 40 CFR part 403 to have
an industrial pretreatment program, provide a proposed
schedule for development and implementation of your in-
dustrial pretreatment program to meet the requirements of
40 CFR part 403.
5. Urban area pretreatment requirement [40 CFR
125.65] Dischargers serving a population of 50,000 or
more must respond.
a. Provide data on all toxic pollutants introduced into
the treatment works from industrial sources (categorical
and noncategorical).
b. Note whether applicable pretreatment requirements
are in effect for each toxic pollutant. Are the industrial
sources introducing such toxic pollutants in compliance
with all of their pretreatment requirements? Are these
pretreatment requirements being enforced? [40 CFR
125.65(b)(2)]
c. If applicable pretreatment requirements do not exist
for each toxic pollutant in the POTW effluent introduced
by industrial sources,
—provide a description and a schedule for your develop-
ment and implementation of applicable pretreatment re-
quirements [40 CFR 125.65(c)], or
—describe how you propose to demonstrate secondary re-
moval equivalency for each of those toxic pollutants,
including a schedule for compliance, by using a sec-
ondary treatment pilot plant. [40 CFR 125.65(d)]
Subpart H—Criteria for Determin-
ing Alternative Effluent Limita-
tions Under Section 316(a) of
the Act
§ 125.70 Purpose and scope.
Section 316(a) of the Act provides that:
"With respect to any point source otherwise subject to
the provisions of section 301 or section 306 of this Act,
whenever the owner or operator of any such source, after
opportunity for public hearing, can demonstrate to the sat-
isfaction of the Administrator (or, if appropriate, the
State) that any effluent limitation proposed for the control
of the thermal component of any discharge from such
source will require effluent limitations more stringent than
necessary to assure the projection [sic] and propagation of
a balanced, indigenous population of shellfish, fish and
wildlife in and on the body of water into which the dis-
charge is to be made, the Administrator (or, if appro-
priate, the State) may impose an effluent limitation under
such sections on such plant, with respect to the thermal
component of such discharge (taking into account the
interaction of such thermal component with other pollut-
22
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§125.72
ants), that will assure the protection and propagation of
a balanced indigenous population of shellfish, fish and
wildlife in and on that body of water."
This subpart describes the factors, criteria and
standards for the establishment of alternative ther-
mal effluent limitations under section 316(a) of the
Act in permits issued under section 402(a) of the
Act.
§125.71 Definitions.
For the purpose of this subpart:
(a) Alternative effluent limitations means all ef-
fluent limitations or standards of performance for
the control of the thermal component of any dis-
charge which are established under section 316(a)
and this subpart.
(b) Representative important species means spe-
cies which are representative, in terms of their bio-
logical needs, of a balanced, indigenous commu-
nity of shellfish, fish and wildlife in the body of
water into which a discharge of heat is made.
(c) The term balanced, indigenous community is
synonymous with the term balanced, indigenous
population in the Act and means a biotic commu-
nity typically characterized by diversity, the capac-
ity to sustain itself through cyclic seasonal
changes, presence of necessary food chain species
and by a lack of domination by pollution tolerant
species. Such a community may include histori-
cally non-native species introduced in connection
with a program of wildlife management and spe-
cies whose presence or abundance results from
substantial, irreversible environmental modifica-
tions. Normally, however, such a community will
not include species whose presence or abundance
is attributable to the introduction of pollutants that
will be eliminated by compliance by all sources
with section 301(b)(2) of the Act; and may not in-
clude species whose presence or abundance is at-
tributable to alternative effluent limitations im-
posed pursuant to section 316(a).
§125.72 Early screening of applica-
tions for section 316(a) variances.
(a) Any initial application for a section 316(a)
variance shall include the following early screen-
ing information:
(1) A description of the alternative effluent limi-
tation requested;
(2) A general description of the method by
which the discharger proposes to demonstrate that
the otherwise applicable thermal discharge effluent
limitations are more stringent than necessary;
(3) A general description of the type of data,
studies, experiments and other information which
the discharger intends to submit for the demonstra-
tion; and
(4) Such data and information as may be avail-
able to assist the Director in selecting the appro-
priate representative important species.
(b) After submitting the early screening infor-
mation under paragraph (a) of this section, the dis-
charger shall consult with the Director at the earli-
est practicable time (but not later than 30 days
after the application is filed) to discuss the dis-
charger's early screening information. Within 60
days after the application is filed, the discharger
shall submit for the Director's approval a detailed
plan of study which the discharger will undertake
to support its section 316(a) demonstration. The
discharger shall specify the nature and extent of
the following type of information to be included
in the plan of study: Biological, hydrographical
and meteorological data; physical monitoring data;
engineering or diffusion models; laboratory stud-
ies; representative important species; and other rel-
evant information. In selecting representative im-
portant species, special consideration shall be
given to species mentioned in applicable water
quality standards. After the discharger submits its
detailed plan of study, the Director shall either ap-
prove the plan or specify any necessary revisions
to the plan. The discharger shall provide any addi-
tional information or studies which the Director
subsequently determines necessary to support the
demonstration, including such studies or inspec-
tions as may be necessary to select representative
important species. The discharger may provide any
additional information or studies which the dis-
charger feels are appropriate to support the dem-
onstration.
(c) Any application for the renewal of a section
316(a) variance shall include only such informa-
tion described in paragraphs (a) and (b) of this
section and § 124.73(c)(l) as the Director requests
within 60 days after receipt of the permit applica-
tion.
(d) The Director shall promptly notify the Sec-
retary of Commerce and the Secretary of the Inte-
rior, and any affected State of the filing of the re-
quest and shall consider any timely recommenda-
tions they submit.
(e) In making the demonstration the discharger
shall consider any information or guidance pub-
lished by EPA to assist in making such demonstra-
tions.
(f) If an applicant desires a ruling on a section
316(a) application before the ruling on any other
necessary permit terms and conditions, (as pro-
vided by § 124.65), it shall so request upon filing
its application under paragraph (a) of this section.
This request shall be granted or denied at the dis-
cretion of the Director.
NOTE: At the expiration of the permit, any discharger
holding a section 316(a) variance should be prepared to
23
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§125.73
support the continuation of the variance with studies
based on the discharger's actual operation experience.
[44 FR 32948, June 7, 1979, as amended at 45 FR 33513,
May 19, 1980]
§125.73 Criteria and standards for the
determination of alternative efflu-
ent limitations under section 316(a).
(a) Thermal discharge effluent limitations or
standards established in permits may be less strin-
gent than those required by applicable standards
and limitations if the discharger demonstrates to
the satisfaction of the director that such effluent
limitations are more stringent than necessary to as-
sure the protection and propagation of a balanced,
indigenous community of shellfish, fish and wild-
life in and on the body of water into which the
discharge is made. This demonstration must show
that the alternative effluent limitation desired by
the discharger, considering the cumulative impact
of its thermal discharge together with all other sig-
nificant impacts on the species affected, will as-
sure the protection and propagation of a balanced
indigenous community of shellfish, fish and wild-
life in and on the body of water into which the
discharge is to be made.
(b) In determining whether or not the protection
and propagation of the affected species will be as-
sured, the Director may consider any information
contained or referenced in any applicable thermal
water quality criteria and thermal water quality in-
formation published by the Administrator under
section 304(a) of the Act, or any other information
he deems relevant.
(c) (1) Existing dischargers may base their dem-
onstration upon the absence of prior appreciable
harm in lieu of predictive studies. Any such dem-
onstrations shall show:
(i) That no appreciable harm has resulted from
the normal component of the discharge (taking
into account the interaction of such thermal com-
ponent with other pollutants and the additive effect
of other thermal sources to a balanced, indigenous
community of shellfish, fish and wildlife in and on
the body of water into which the discharge has
been made; or
(ii) That despite the occurrence of such previous
harm, the desired alternative effluent limitations
(or appropriate modifications thereof) will never-
theless assure the protection and propagation of a
balanced, indigenous community of shellfish, fish
and wildlife in and on the body of water into
which the discharge is made.
(2) In determining whether or not prior appre-
ciable harm has occurred, the Director shall con-
sider the length of time in which the applicant has
been discharging and the nature of the discharge.
Subpart I—Criteria Applicable to
Cooling Water Intake Struc-
tures Under Section 316(b) of
the Act—[Reserved]
Subpart J [Reserved]
Subpart K—Criteria and Standards
for Best Management Prac-
tices Authorized Under Sec-
tion 304(e) of the Act
§ 125.100 Purpose and scope.
This subpart describes how best management
practices (BMPs) for ancillary industrial activities
under section 304(e) of the Act shall be reflected
in permits, including best management practices
promulgated in effluent limitations under section
304 and established on a case-by-case basis in per-
mits under section 402(a)(l) of the Act. Best man-
agement practices authorized by section 304(e) are
included in permits as requirements for the pur-
poses of section 301, 302, 306, 307, or 403 of the
Act, as the case may be.
§125.101 Definition.
Manufacture means to produce as an intermedi-
ate or final product, or by-product.
§ 125.102 Applicability of best manage-
ment practices.
Dischargers who use, manufacture, store, handle
or discharge any pollutant listed as toxic under
section 307(a)(l) of the Act or any pollutant listed
as hazardous under section 311 of the Act are sub-
ject to the requirements of this Subpart for all ac-
tivities which may result in significant amounts of
those pollutants reaching waters of the United
States. These activities are ancillary manufacturing
operations including: Materials storage areas; in-
plant transfer, process and material handling areas;
loading and unloading operations; plant site run-
off; and sludge and waste disposal areas.
§ 125.103 Permit terms and conditions.
(a) Best management practices shall be ex-
pressly incorporated into a permit where required
by an applicable EPA promulgated effluent limita-
tions guideline under section 304(e);
(b) Best management practices may be ex-
pressly incorporated into a permit on a case-by-
case basis where determined necessary to carry out
the provisions of the Act under section 402(a)(l).
In issuing a permit containing BMP requirements,
the Director shall consider the following factors:
(1) Toxicity of the pollutant(s);
24
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§125.104
(2) Quantity of the pollutant(s) used, produced,
or discharged;
(3) History of NPDES permit violations;
(4) History of significant leaks or spills of toxic
or hazardous pollutants;
(5) Potential for adverse impact on public health
(e.g., proximity to a public water supply) or the
environment (e.g., proximity to a sport or
commerical fishery); and
(6) Any other factors determined to be relevant
to the control of toxic or hazardous pollutants.
(c) Best management practices may be estab-
lished in permits under paragraph (b) of this sec-
tion alone or in combination with those required
under paragraph (a) of this section.
(d) In addition to the requirements of para-
graphs (a) and (b) of this section, dischargers cov-
ered under § 125.102 shall develop and implement
a best management practices program in accord-
ance with § 125.104 which prevents, or minimizes
the potential for, the release of toxic or hazardous
pollutants from ancillary activities to waters of the
United States.
§125.104 Best management practices
programs.
(a) BMP programs shall be developed in ac-
cordance with good engineering practices and with
the provisions of this subpart.
(b) The BMP program shall:
(1) Be documented in narrative form, and shall
include any necessary plot plans, drawings or
maps;
(2) Establish specific objectives for the control
of toxic and hazardous pollutants.
(i) Each facility component or system shall be
examined for its potential for causing a release of
significant amounts of toxic or hazardous pollut-
ants to waters of the United States due to equip-
ment failure, improper operation, natural phenom-
ena such as rain or snowfall, etc.
(ii) Where experience indicates a reasonable po-
tential for equipment failure (e.g., a tank overflow
or leakage), natural condition (e.g., precipitation),
or other circumstances to result in significant
amounts of toxic or hazardous pollutants reaching
surface waters, the program should include a pre-
diction of the direction, rate of flow and total
quantity of toxic or hazardous pollutants which
could be discharged from the facility as a result of
each condition or circumstance;
(3) Establish specific best management practices
to meet the objectives identified under paragraph
(b)(2) of this section, addressing each component
or system capable of causing a release of signifi-
cant amounts of toxic or hazardous pollutants to
the waters of the United States;
(4) The BMP program: (i) May reflect require-
ments for Spill Prevention Control and Counter-
measure (SPCC) plans under section 311 of the
Act and 40 CFR part 151, and may incorporate
any part of such plans into the BMP program by
reference;
{Comment: EPA has proposed section 311(j)(l)(c) regula-
tions (43 FR 39276) which require facilities subject to
NPDES to develop and implement SPCC plans to prevent
discharges of reportable quantities of designated hazard-
ous substances. While subpart K requires only procedural
activities and minor construction, the proposed 40 CFR
part 151 (SPCC regulations) are more stringent and com-
prehensive with respect to their requirements for spill pre-
vention. In developing BMP programs in accordance with
subpart K, owners or operators should also consider the
requirements of proposed 40 CFR part 151 which may
address many of the same areas of the facility covered by
this subpart.]
(ii) Shall assure the proper management of solid
and hazardous waste in accordance with regula-
tions promulgated under the Solid Waste Disposal
Act, as amended by the Resource Conservation
and Recovery Act of 1976 (RCRA) (40 U.S.C.
6901 et seq). Management practices required under
RCRA regulations shall be expressly incorporated
into the BMP program; and
(iii) Shall address the following points for the
ancillary activities in § 125.102:
(A) Statement of policy;
(B) Spill Control Committee;
(C) Material inventory;
(D) Material compatibility;
(E) Employee training:
(F) Reporting and notification procedures;
(G) Visual inspections;
(H) Preventive maintenance;
(I) Housekeeping; and
(J) Security.
{Comment: Additional technical information on BMPs
and the elements of a BMP program is contained in publi-
cation entitled "Guidance Manual for Developing Best
Management Practices (BMP)." Copies may be obtained
by written request to the Office of Water Resource Center
(mail code: 4100), Environmental Protection Agency,
Washington, DC 20460].
(c)(l) The BMP program must be clearly de-
scribed and submitted as part of the permit appli-
cation. An application which does not contain a
BMP program shall be considered incomplete.
Upon receipt of the application, the Director shall
approve or modify the program in accordance with
the requirements of this subpart. The BMP pro-
gram as approved or modified shall be included in
the draft permit (§ 124.6). The BMP program shall
be subject to the applicable permit issuance re-
quirements of part 124, resulting in the incorpora-
tion of the program (including any modifications
of the program resulting from the permit issuance
procedures) into the final permit.
(2) Proposed modifications to the BMP program
which affect the discharger's permit obligations
25
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§125.120
shall be submitted to the Director for approval. If
the Director approves the proposed BMP program
modification, the permit shall be modified in ac-
cordance with § 122.62, provided that the Director
may waive the requirements for public notice and
opportunity for hearing on such modification if he
or she determines that the modification is not sig-
nificant. The BMP program, or modification there-
of, shall be fully implemented as soon as possible
but not later than one year after permit issuance,
modification, or revocation and reissuance unless
the Director specifies a later date in the permit.
NOTE: A later date may be specified in the permit, for
example, to enable coordinated preparation of the BMP
program required under these regulations and the SPCC
plan required under 40 CFR part 151 or to allow for the
completion of construction projects related to the facili-
ty's BMP or SPCC program.
(d) The discharger shall maintain a description
of the BMP program at the facility and shall make
the description available to the Director upon re-
quest.
(e) The owner or operator of a facility subject
to this subpart shall amend the BMP program in
accordance with the provisions of this subpart
whenever there is a change in facility design, con-
struction, operation, or maintenance which materi-
ally affects the facility's potential for discharge of
significant amounts of hazardous or toxic pollut-
ants into the waters of the United States.
(f) If the BMP program proves to be ineffective
in achieving the general objective of preventing
the release of significant amounts of toxic or haz-
ardous pollutants to those waters and the specific
objectives and requirements under paragraph (b) of
this section, the permit and/or the BMP program
shall be subject to modification to incorporate re-
vised BMP requirements.
(Clean Water Act, Safe Drinking Water Act, Clean Air
Act, Resource Conservation and Recovery Act: 42 U.S.C.
6905, 6912, 6925, 6027, 6974)
[44 FR 32948, June 7, 1979, as amended at 45 FR 33513,
May 19, 1980; 48 FR 14293, Apr. 1, 1983; 60 FR 53875,
Oct. 18, 1995]
Subpart L—Criteria and Standards
for Imposing Conditions for
the Disposal of Sewage
Sludge Under Section 405 of
the Act [Reserved]
Subpart M—Ocean Discharge
Criteria
SOURCE: 45 FR 65953, Oct. 3, 1980, unless otherwise
noted.
§ 125.120 Scope and purpose.
This subpart establishes guidelines for issuance
of National Pollutant Discharge Elimination Sys-
tem (NPDES) permits for the discharge of pollut-
ants from a point source into the territorial seas,
the contiguous zone, and the oceans.
§125.121 Definitions.
(a) Irreparable harm means significant undesir-
able effects occurring after the date of permit issu-
ance which will not be reversed after cessation or
modification of the discharge.
(b) Marine environment means that territorial
seas, the contiguous zone and the oceans.
(c) Mixing zone means the zone extending from
the sea's surface to seabed and extending laterally
to a distance of 100 meters in all directions from
the discharge point(s) or to the boundary of the
zone of initial dilution as calculated by a plume
model approved by the director, whichever is
greater, unless the director determines that the
more restrictive mixing zone or another definition
of the mixing zone is more appropriate for a spe-
cific discharge.
(d) No reasonable alternatives means:
(1) No land-based disposal sites, discharge
point(s) within internal waters, or approved ocean
dumping sites within a reasonable distance of the
site of the proposed discharge the use of which
would not cause unwarranted economic impacts on
the discharger, or, notwithstanding the availability
of such sites,
(2) On-site disposal is environmentally pref-
erable to other alternative means of disposal after
consideration of:
(i) The relative environmental harm of disposal
on-site, in disposal sites located on land, from dis-
charge point(s) within internal waters, or in ap-
proved ocean dumping sites, and
(ii) The risk to the environment and human
safety posed by the transportation of the pollut-
ants.
(e) Unreasonable degradation of the marine en-
vironment means: (1) Significant adverse changes
in ecosystem diversity, productivity and stability
of the biological community within the area of
discharge and surrounding biological communities,
(2) Threat to human health through direct expo-
sure to pollutants or through consumption of ex-
posed aquatic organisms, or
(3) Loss of esthetic, recreational, scientific or
economic values which is unreasonable in relation
to the benefit derived from the discharge.
26
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§125.123
§125.122 Determination of unreason-
able degradation of the marine en-
vironment.
(a) The director shall determine whether a dis-
charge will cause unreasonable degradation of the
marine environment based on consideration of:
(1) The quantities, composition and potential for
bioaccumulation or persistence of the pollutants to
be discharged;
(2) The potential transport of such pollutants by
biological, physical or chemical processes;
(3) The composition and vulnerability of the bi-
ological communities which may be exposed to
such pollutants, including the presence of unique
species or communities of species, the presence of
species identified as endangered or threatened pur-
suant to the Endangered Species Act, or the pres-
ence of those species critical to the structure or
function of the ecosystem, such as those important
for the food chain;
(4) The importance of the receiving water area
to the surrounding biological community, includ-
ing the presence of spawning sites, nursery/forage
areas, migratory pathways, or areas necessary for
other functions or critical stages in the life cycle
of an organism.
(5) The existence of special aquatic sites includ-
ing, but not limited to marine sanctuaries and ref-
uges, parks, national and historic monuments, na-
tional seashores, wilderness areas and coral reefs;
(6) The potential impacts on human health
through direct and indirect pathways;
(7) Existing or potential recreational and com-
mercial fishing, including finfishing and
shellfishing;
(8) Any applicable requirements of an approved
Coastal Zone Management plan;
(9) Such other factors relating to the effects of
the discharge as may be appropriate;
(10) Marine water quality criteria developed
pursuant to section 304(a)(l).
(b) Discharges in compliance with section
301(g), 301(h), or 316(a) variance requirements or
State water quality standards shall be presumed
not to cause unreasonable degradation of the ma-
rine environment, for any specific pollutants or
conditions specified in the variance or the stand-
ard.
§125.123 Permit requirements.
(a) If the director on the basis of available in-
formation including that supplied by the applicant
pursuant to §125.124 determines prior to permit
issuance that the discharge will not cause unrea-
sonable degradation of the marine environment
after application of any necessary conditions speci-
fied in § 125.123(d), he may issue an NPDES per-
mit containing such conditions.
(b) If the director, on the basis of available in-
formation including that supplied by the applicant
pursuant to §125.124 determines prior to permit
issuance that the discharge will cause unreasonable
degradation of the marine environment after appli-
cation of all possible permit conditions specified
in § 125.123(d), he may not issue an NPDES per-
mit which authorizes the discharge of pollutants.
(c) If the director has insufficient information to
determine prior to permit issuance that there will
be no unreasonable degradation of the marine en-
vironment pursuant to § 125.122, there shall be no
discharge of pollutants into the marine environ-
ment unless the director on the basis of available
information, including that supplied by the appli-
cant pursuant to § 125.124 determines that:
(1) Such discharge will not cause irreparable
harm to the marine environment during the period
in which monitoring is undertaken, and
(2) There are no reasonable alternatives to the
on-site disposal of these materials, and
(3) The discharge will be in compliance with all
permit conditions established pursuant to para-
graph (d) of this section.
(d) All permits which authorize the discharge of
pollutants pursuant to paragraph (c) of this section
shall:
(1) Require that a discharge of pollutants will:
(i) Following dilution as measured at the boundary
of the mixing zone not exceed the limiting permis-
sible concentration for the liquid and suspended
particulate phases of the waste material as de-
scribed in §227.27(a) (2) and (3), §227.27(b), and
§227.27(c) of the Ocean Dumping Criteria; and
(ii) not exceed the limiting permissible concentra-
tion for the solid phase of the waste material or
cause an accumulation of toxic materials in the
human food chain as described in § 227'.27 (b) and
(d) of the Ocean Dumping Criteria;
(2) Specify a monitoring program, which is suf-
ficient to assess the impact of the discharge on
water, sediment, and biological quality including,
where appropriate, analysis of the bioaccumulative
and/or persistent impact on aquatic life of the dis-
charge;
(3) Contain any other conditions, such as per-
formance of liquid or suspended particulate phase
bioaccumulation tests, seasonal restrictions on dis-
charge, process modifications, dispersion of pollut-
ants, or schedule of compliance for existing dis-
charges, which are determined to be necessary be-
cause of local environmental conditions, and
(4) Contain the following clause: In addition to
any other grounds specified herein, this permit
shall be modified or revoked at any time if, on the
basis of any new data, the director determines that
continued discharges may cause unreasonable deg-
radation of the marine environment.
27
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§125.124
§125.124 Information required to be (c) An analysis of initial dilution;
submitted by applicant. (d) Available process modifications which will
The applicant is responsible for providing infor- reduce the quantities of pollutants which will be
mation which the director may request to make the discharged;
determination required by this subpart. The direc- (e) Analysis of the location where pollutants are
tor may require the following information as well sought to be discharged, including the biological
as any other pertinent information: community and the physical description of the dis-
(a) An analysis of the chemical constituents of charge facility;
any discharge; (f) Evaluation of available alternatives to the
(b) Appropriate bioassays necessary to deter- discharge of the pollutants including an evaluation
mine the limiting permissible concentrations for of the possibility of land-based disposal or dis-
the discharge; posal in an approved ocean dumping site.
28
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PART 129—TOXIC POLLUTANT
EFFLUENT STANDARDS
Subpart A—Toxic Pollutant Effluent
Standards and Prohibitions
Sec.
129.1 Scope and purpose.
129.2 Definitions.
129.3 Abbreviations.
129.4 Toxic pollutants.
129.5 Compliance.
129.6 Adjustment of effluent standard for presence of
toxic pollutant in the intake water.
129.7 Requirement and procedure for establishing a
more stringent effluent limitation.
129.8 Compliance date.
129.9—129.99 [Reserved]
129.100 Aldrm/dieldrm.
129.101 DDT, ODD and DDE.
129.102 Endrm.
129.103 Toxaphene.
129.104 Benzidme.
129.105 Fob/chlorinated biphenyls (PCBs).
AUTHORITY: Sees. 307, 308, 501, Federal Water Pollu-
tion Control Act Amendments of 1972 (Pub. L. 92-500,
86 Stat. 816, (33 U.S.C. 1251 et seq.)).
SOURCE: 42 FR 2613, Jan. 12, 1977, unless otherwise
noted.
Subpart A—Toxic Pollutant Effluent
Standards and Prohibitions
§ 129.1 Scope and purpose.
(a) The provisions of this subpart apply to own-
ers or operators of specified facilities discharging
into navigable waters.
(b) The effluent standards or prohibitions for
toxic pollutants established in this subpart shall be
applicable to the sources and pollutants hereinafter
set forth, and may be incorporated in any NPDES
permit, modification or renewal thereof, in accord-
ance with the provisions of this subpart.
(c) The provisions of 40 CFR parts 124 and 125
shall apply to any NPDES permit proceedings for
any point source discharge containing any toxic
pollutant for which a standard or prohibition is es-
tablished under this part.
§129.2 Definitions.
All terms not defined herein shall have the
meaning given them in the Act or in 40 CFR part
124 or 125. As used in this part, the term:
(a) Act means the Federal Water Pollution Con-
trol Act, as amended (Pub. L. 92-500, 86 Stat.
816 et seq., 33 U.S.C. 1251 et seq.). Specific ref-
erences to sections within the Act will be accord-
ing to Pub. L. 92-500 notation.
(b) Administrator means the Administrator of
the Environmental Protection Agency or any em-
ployee of the Agency to whom the Administrator
may by order delegate the authority to carry out
his functions under section 307(a) of the Act, or
any person who shall by operation of law be au-
thorized to carry out such functions.
(c) Effluent standard means, for purposes of
section 307, the equivalent of effluent limitation as
that term is defined in section 502(11) of the Act
with the exception that it does not include a
schedule of compliance.
(d) Prohibited means that the constituent shall
be absent in any discharge subject to these stand-
ards, as determined by any analytical method.
(e) Permit means a permit for the discharge of
pollutants into navigable waters under the National
Pollutant Discharge Elimination System estab-
lished by section 402 of the Act and implemented
in regulations in 40 CFR parts 124 and 125.
(f) Working day means the hours during a cal-
endar day in which a facility discharges effluents
subject to this part.
(g) Ambient water criterion means that con-
centration of a toxic pollutant in a navigable water
that, based upon available data, will not result in
adverse impact on important aquatic life, or on
consumers of such aquatic life, after exposure of
that aquatic life for periods of time exceeding 96
hours and continuing at least through one repro-
ductive cycle; and will not result in a significant
risk of adverse health effects in a large human
population based on available information such as
mammalian laboratory toxicity data, epidemiolog-
ical studies of human occupational exposures, or
human exposure data, or any other relevant data.
(h) New source means any source discharging a
toxic pollutant, the construction of which is com-
menced after proposal of an effluent standard or
prohibition applicable to such source if such efflu-
ent standard or prohibition is thereafter promul-
gated in accordance with section 307.
(i) Existing source means any source which is
not a new source as defined above.
(j) Source means any building, structure, facil-
ity, or installation from which there is or may be
the discharge of toxic pollutants designated as
such by the Administration under section 307(a)(l)
of the Act.
(k) Owner or operator means any person who
owns, leases, operates, controls, or supervises a
source as defined above.
(1) Construction means any placement, assem-
bly, or installation of facilities or equipment (in-
cluding contractual obligations to purchase such
facilities or equipment) at the premises where such
equipment will be used, including preparation
work at such premises.
(m) Manufacturer means any establishment en-
gaged in the mechanical or chemical trans-
formation of materials or substances into new
products including but not limited to the blending
1
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§129.3
of materials such as pesticidal products, resins, or
liquors.
(n) Process wastes means any designated toxic
pollutant, whether in wastewater or otherwise
present, which is inherent to or unavoidably result-
ing from any manufacturing process, including that
which comes into direct contact with or results
from the production or use of any raw material,
intermediate product, finished product, by-product
or waste product and is discharged into the navi-
gable waters.
(o) Air emissions means the release or discharge
of a toxic pollutant by an owner or operator into
the ambient air either (1) by means of a stack or
(2) as a fugitive dust, mist or vapor as a result in-
herent to the manufacturing or formulating proc-
ess.
(p) Fugitive dust, mist or vapor means dust,
mist or vapor containing a toxic pollutant regu-
lated under this part which is emitted from any
source other than through a stack.
(q) Stack means any chimney, flue, conduit, or
duct arranged to conduct emissions to the ambient
air.
(r) Ten year 24-hour rainfall event means the
maximum precipitation event with a probable re-
currence interval of once in 10 years as defined by
the National Weather Service in Technical Paper
No. 40, Rainfall Frequency Atlas of the United
States, May 1961, and subsequent amendments or
equivalent regional or State rainfall probability in-
formation developed therefrom.
(s) State Director means the chief administrative
officer of a State or interstate water pollution con-
trol agency operating an approved HPDES permit
program. In the event responsibility for water pol-
lution control and enforcement is divided among
two or more State or interstate agencies, the term
State Director means the administrative officer au-
thorized to perform the particular procedure to
which reference is made.
§129.3 Abbreviations.
The abbreviations used in this part represent the
following terms:
lb=pound (or pounds).
g=gram.
|Ig/l=micrograms per liter (1 one-millionth gram/liter).
kg=kilogram(s).
kkg=1000 kilogram(s).
§ 129.4 Toxic pollutants.
The following are the pollutants subject to regu-
lation under the provisions of this subpart:
(a) Aldrin/Dieldrin—Aldrin means the
compound aldrin as identified by the chemical
name, l,2,3,4,10,10-hexachloro-l,4,4a,5,8,8a-
hexahydro -1,4 -endo-5,8-exo-
dimethanonaphthalene; "Dieldrin" means the
compound the dieldrin as identified by the chemi-
cal name l,2,3,4,10,10-hexachloro-6,7-epoxy-
l,4,4a,5,6,7,8,8a-octahydro-l,4-endo-5,8-exo-
dimethanonaphthalene.
(b) DDT—DDT means the compounds DDT,
DDD, and DDE as identified by the chemical
names :(DDT> 1,1,1 -trichloro-2,2 - bis(p -
chlorophenyl) ethane and someo,p'-isomers;
(DDD) or (TDE)-l,l-dichloro-2,2-bis(p-
chlorophenyl) ethane and some o,p'-isomers;
(DDE)-1,1 - dichloro-2,2-bis(p-chlorophenyl)
ethylene.
(c) Endrin—Endrin means the compound endrin
as identified by the chemical name 1,2,3,4,10,10-
hexachloro-6,7-epoxy - l,4,4a,5,6,7,8,8a- oc-
tahydro - l,4-endo-5,8-endodimethanonaphthalene.
(d) Toxaphene—Toxaphene means a material
consisting of technical grade chlorinated camphene
having the approximate formula of CioHioClg and
normally containing 67-69 percent chlorine by
weight.
(e) Benzidine—Benzidine means the compound
benzidine and its salts as identified by the chemi-
cal name 4,4'-diaminobiphenyl.
(f) Polychlorinated Biphenyls (PCBs) poly-
chlorinated biphenyls (PCBs) means a mixture of
compounds composed of the biphenyl molecule
which has been chlorinated to varying degrees.
[42 FR 2613, Jan. 12, 1977, as amended at 42 FR 2620,
Jan. 12, 1977; 42 FR 6555, Feb. 2, 1977]
§129.5 Compliance.
(a)(l) Within 60 days from the date of promul-
gation of any toxic pollutant effluent standard or
prohibition each owner or operator with a dis-
charge subject to that standard or prohibition must
notify the Regional Administrator (or State Direc-
tor, if appropriate) of such discharge. Such notifi-
cation shall include such information and follow
such procedures as the Regional Administrator (or
State Director, if appropriate) may require.
(2) Any owner or operator who does not have
a discharge subject to any toxic pollutant effluent
standard at the time of such promulgation but who
thereafter commences or intends to commence any
activity which would result in such a discharge
shall first notify the Regional Administrator (or
State Director, if appropriate) in the manner herein
provided at least 60 days prior to any such dis-
charge.
(b) Upon receipt of any application for issuance
or reissuance of a permit or for a modification of
an existing permit for a discharge subject to a
toxic pollutant effluent standard or prohibition the
permitting authority shall proceed thereon in ac-
cordance with 40 CFR part 124 or 125, whichever
is applicable.
-------
§129.6
(c)(l) Every permit which contains limitations
based upon a toxic pollutant effluent standard or
prohibition under this part is subject to revision
following the completion of any proceeding revis-
ing such toxic pollutant effluent standard or prohi-
bition regardless of the duration specified on the
permit.
(2) For purposes of this section, all toxic pollut-
ants for which standards are set under this part are
deemed to be injurious to human health within the
meaning of section 402(k) of the Act unless other-
wise specified in the standard established for any
particular pollutant.
(d)(l) Upon the compliance date for any section
307(a) toxic pollutant effluent standard or prohibi-
tion, each owner or operator of a discharge subject
to such standard or prohibition shall comply with
such monitoring, sampling, recording, and report-
ing conditions as the Regional Administrator (or
State Director, if appropriate) may require for that
discharge. Notice of such conditions shall be pro-
vided in writing to the owner or operator.
(2) In addition to any conditions required pursu-
ant to paragraph (d)(l) of this section and to the
extent not required in conditions contained in
NPDES permits, within 60 days following the
close of each calendar year each owner or operator
of a discharge subject to any toxic standard or
prohibition shall report to the Regional Adminis-
trator (or State Director, if appropriate) concerning
the compliance of such discharges. Such report
shall include, as a minimum, information concern-
ing (i) relevant identification of the discharger
such as name, location of facility, discharge
points, receiving waters, and the industrial process
or operation emitting the toxic pollutant; (ii) rel-
evant conditions (pursuant to paragraph (d)(l) of
this section or to an NPDES permit) as to flow,
section 307(a) toxic pollutant concentrations, and
section 307(a) toxic pollutant mass emission rate;
(iii) compliance by the discharger with such condi-
tions.
(3) When samples collected for analysis are
composited, such samples shall be composited in
proportion to the flow at time of collection and
preserved in compliance with requirements of the
Regional Administrator (or State Director, if ap-
propriate), but shall include at least five samples,
collected at approximately equal intervals through-
out the working day.
(e)(l) Nothing in these regulations shall pre-
clude a Regional Administrator from requiring in
any permit a more stringent effluent limitation or
standard pursuant to section 301(b)(l)(C) of the
Act and implemented in 40 CFR 125.11 and other
related provisions of 40 CFR part 125.
(2) Nothing in these regulations shall preclude
the Director of a State Water Pollution Control
Agency or interstate agency operating a National
Pollutant Discharge Elimination System Program
which has been approved by the Administrator
pursuant to section 402 of the Act from requiring
in any permit a more stringent effluent limitation
or standard pursuant to section 301(b)(l)(C) of the
Act and implemented in 40 CFR 124.42 and other
related provisions of 40 CFR part 124.
(f) Any owner or operator of a facility which
discharges a toxic pollutant to the navigable wa-
ters and to a publicly owned treatment system
shall limit the summation of the mass emissions
from both discharges to the less restrictive stand-
ard, either the direct discharge standard or the
pretreatment standard; but in no case will this
paragraph allow a discharge to the navigable wa-
ters greater than the toxic pollutant effluent stand-
ard established for a direct discharge to the navi-
gable waters.
(g) In any permit hearing or other administrative
proceeding relating to the implementation or en-
forcement of these standards, or any modification
thereof, or in any judicial proceeding other than a
petition for review of these standards pursuant to
section 509(b)(l)(C) of the Act, the parties thereto
may not contest the validity of any national stand-
ards established in this part, or the ambient water
criterion established herein for any toxic pollutant.
§129.6 Adjustment of effluent stand-
ard for presence of toxic pollutant
in the intake water.
(a) Upon the request of the owner or operator
of a facility discharging a pollutant subject to a
toxic pollutant effluent standard or prohibition, the
Regional Administrator (or State Director, if ap-
propriate) shall give credit, and shall adjust the ef-
fluent standard(s) in such permit to reflect credit
for the toxic pollutant(s) in the owner's or opera-
tor's water supply if (1) the source of the owner's
or operator's water supply is the same body of
water into which the discharge is made and if (2)
it is demonstrated to the Regional Administrator
(or State Director, if appropriate) that the toxic
pollutant(s) present in the owner's or operator's
intake water will not be removed by any
wastewater treatment systems whose design capac-
ity and operation were such as to reduce toxic pol-
lutants to the levels required by the applicable
toxic pollutant effluent standards in the absence of
the toxic pollutant in the intake water.
(b) Effluent limitations established pursuant to
this section shall be calculated on the basis of the
amount of section 307(a) toxic pollutant(s) present
in the water after any water supply treatment steps
have been performed by or for the owner or oper-
ator.
(c) Any permit which includes toxic pollutant
effluent limitations established pursuant to this
section shall also contain conditions requiring the
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§129.7
permittee to conduct additional monitoring in the
manner and locations determined by the Regional
Administrator (or State Director, if appropriate) for
those toxic pollutants for which the toxic pollutant
effluent standards have been adjusted.
§ 129.7 Requirement and procedure for
establishing a more stringent efflu-
ent limitation.
(a) In exceptional cases: (1) Where the Re-
gional Administrator (or State Director, if appro-
priate) determines that the ambient water criterion
established in these standards is not being met or
will not be met in the receiving water as a result
of one or more discharges at levels allowed by
these standards, and
(2) Where he further determines that this is re-
sulting in or may cause or contribute to significant
adverse effects on aquatic or other organisms usu-
ally or potentially present, or on human health, he
may issue to an owner or operator a permit or a
permit modification containing a toxic pollutant
effluent limitation at a more stringent level than
that required by the standard set forth in these reg-
ulations. Any such action shall be taken pursuant
to the procedural provisions of 40 CFR parts 124
and 125, as appropriate. In any proceeding in con-
nection with such action the burden of proof and
of going forward with evidence with regard to
such more stringent effluent limitation shall be
upon the Regional Administrator (or State Direc-
tor, if appropriate) as the proponent of such more
stringent effluent limitation.
(3) Evidence in such proceeding shall include at
a minimum: An analysis using data and other in-
formation to demonstrate receiving water con-
centrations of the specified toxic pollutant, projec-
tions of the anticipated effects of the proposed
modification on such receiving water concentra-
tions, and the hydrologic and hydrographic charac-
teristics of the receiving waters including the oc-
currence of dispersion of the effluent. Detailed
specifications for presenting relevant information
by any interested party may be prescribed in guid-
ance documents published from time to time,
whose availability will be announced in the FED-
ERAL REGISTER.
(b) Any effluent limitation in an NPDES permit
which a State proposes to issue which is more
stringent than the toxic pollutant effluent standards
promulgated by the Administrator is subject to re-
view by the Administrator under section 402(d) of
the Act. The Administrator may approve or dis-
approve such limitation(s) or specify another
limitation(s) upon review of any record of any
proceedings held in connection with the permit is-
suance or modification and any other evidence
available to him. If he takes no action within nine-
ty days of his receipt of the notification of the ac-
tion of the permit issuing authority and any record
thereof, the action of the State permit issuing au-
thority shall be deemed to be approved.
§129.8 Compliance date.
(a) The effluent standards or prohibitions set
forth herein shall be complied with not later than
one year after promulgation unless an earlier date
is established by the Administrator for an indus-
trial subcategory in the promulgation of the stand-
ards or prohibitions.
(b) Toxic pollutant effluent standards or prohibi-
tions set forth herein shall become enforceable
under sections 307(d) and 309 of the Act on the
date established in paragraph (a) of this section re-
gardless of proceedings in connection with the is-
suance of any NPDES permit or application there-
for, or modification or renewal thereof.
§§129.9—129.99 [Reserved]
§129.100 Aldrin/dieldrin.
(a) Specialized definitions. (1) Aldrin/Dieldrin
manufacturer means a manufacturer, excluding
any source which is exclusively an aldrin/dieldrin
formulator, who produces, prepares or processes
technical aldrin or dieldrin or who uses aldrin or
dieldrin as a material in the production, prepara-
tion or processing of another synthetic organic
substance.
(2) Aldrin/Dieldrin formulator means a person
who produces, prepares or processes a formulated
product comprising a mixture of either aldrin or
dieldrin and inert materials or other diluents, into
a product intended for application in any use reg-
istered under the Federal Insecticide, Fungicide
and Rodenticide Act, as amended (7 U.S.C. 135,
et seq.).
(3) The ambient water criterion for aldrin/
dieldrin in navigable waters is 0.003 |lg/l.
(b) Aldrin/dieldrin manufacturer—(1) Applica-
bility, (i) These standards or prohibitions apply to:
(A) All discharges of process wastes; and
(B) All discharges from the manufacturing
areas, loading and unloading areas, storage areas
and other areas which are subject to direct con-
tamination by aldrin/dieldrin as a result of the
manufacturing process, including but not limited
to:
(7) Stormwater and other runoff except as here-
inafter provided in paragraph (b)(l)(ii) of this sec-
tion; and
(2) Water used for routine cleanup or cleanup of
spills.
(ii) These standards do not apply to stormwater
runoff or other discharges from areas subject to
contamination solely by fallout from air emissions
of aldrin/dieldrin; or to stormwater runoff that ex-
ceeds that from the ten year 24-hour rainfall event.
-------
§129.102
(2) Analytical method acceptable. Environ-
mental Protection Agency method specified in 40
CFR part 136, except that a 1-liter sample size is
required to increase the analytical sensitivity.
(3) Effluent standard—(i) Existing sources.
Aldrin or dieldrin is prohibited in any discharge
from any aldrin/dieldrin manufacturer.
(ii) New Sources. Aldrin or dieldrin is prohib-
ited in any discharge from any aldrin/dieldrin
manufacturer.
(c) Aldrin/dieldrin formulator—(1) Applicability.
(i) These standards or prohibitions apply to:
(A) All discharges of process wastes; and
(B) All discharges from the formulating areas,
loading and unloading areas, storage areas and
other areas which are subject to direct contamina-
tion by aldrin/dieldrin as a result of the formulat-
ing process, including but not limited to:
(7) Stormwater and other runoff except as here-
inafter provided in paragraph (c)(l)(ii) of this sec-
tion; and
(2) Water used for routine cleanup or cleanup of
spills.
(ii) These standards do not apply to stormwater
runoff or other discharges from areas subject to
contamination solely by fallout from air emissions
of aldrin/dieldrin; or to stormwater runoff that ex-
ceeds that from the ten year 24-hour rainfall event.
(2) Analytical method acceptable. Environ-
mental Protection Agency method specified in 40
CFR part 136, except that a 1-liter sample size is
required to increase the analytical sensitivity.
(3) Effluent standard—(i) Existing sources.
Aldrin or dieldrin is prohibited in any discharge
from any aldrin/dieldrin formulator.
(ii) New sources. Aldrin or dieldrin is prohibited
in any discharge from any aldrin/dieldrin formula-
tor.
§ 129.101 DDT, ODD and DDE.
(a) Specialized definitions. (1) DDT Manufac-
turer means a manufacturer, excluding any source
which is exclusively a DDT formulator, who pro-
duces, prepares or processes technical DDT, or
who uses DDT as a material in the production,
preparation or processing of another synthetic or-
ganic substance.
(2) DDT formulator means a person who pro-
duces, prepares or processes a formulated product
comprising a mixture of DDT and inert materials
or other diluents into a product intended for appli-
cation in any use registered under the Federal In-
secticide, Fungicide and Rodenticide Act, as
amended (7 U.S.C. 135, et seq.).
(3) The ambient water criterion for DDT in nav-
igable waters is 0.001 |lg/l.
(b) DDT manufacturer—(1) Applicability, (i)
These standards or prohibitions apply to:
(A) All discharges of process wastes; and
(B) All discharges from the manufacturing
areas, loading and unloading areas, storage areas
and other areas which are subject to direct con-
tamination by DDT as a result of the manufactur-
ing process, including but not limited to:
(7) Stormwater and other runoff except as here-
inafter provided in paragraph (b)(l)(ii) of this sec-
tion; and
(2) Water used for routine cleanup or cleanup of
spills.
(ii) These standards do not apply to stormwater
runoff or other discharges from areas subject to
contamination solely by fallout from air emissions
of DDT; or to stormwater runoff that exceeds that
from the ten year 24-hour rainfall event.
(2) Analytical method acceptable. Environ-
mental Protection Agency method specified in 40
CFR part 136, except that a 1-liter sample size is
required to increase the analytical sensitivity.
(3) Effluent standard—(i) Existing sources.
DDT is prohibited in any discharge from any DDT
manufacturer.
(ii) New sources. DDT is prohibited in any dis-
charge from any DDT manufacturer.
(c) DDT formulator—(1) Applicability, (i) These
standards or prohibitions apply to:
(A) All discharges of process wastes; and
(B) All discharges from the formulating areas,
loading and unloading areas, storage areas and
other areas which are subject to direct contamina-
tion by DDT as a result of the formulating proc-
ess, including but not limited to:
(7) Stormwater and other runoff except as here-
inafter provided in paragraph (c)(l)(ii) of this sec-
tion; and
(2) Water used for routine cleanup or cleanup of
spills.
(ii) These standards do not apply to stormwater
runoff or other discharges from areas subject to
contamination solely by fallout from air emissions
of DDT; or to stormwater runoff that exceeds that
from the ten year 24-hour rainfall event.
(2) Analytical method acceptable. Environ-
mental Protection Agency method specified in 40
CFR part 136, except that a 1-liter sample size is
required to increase the analytical sensitivity.
(3) Effluent standard—(i) Existing sources.
DDT is prohibited in any discharge from any DDT
formulator.
(ii) New Sources. DDT is prohibited in any dis-
charge from any DDT formulator.
§129.102 Endrin.
(a) Specialized definitions. (1) Endrin Manufac-
turer means a manufacturer, excluding any source
which is exclusively an endrin formulator, who
produces, prepares or processes technical endrin or
who uses endrin as a material in the production,
-------
§129.103
preparation or processing of another synthetic or-
ganic substance.
(2) Endrin Formulator means a person who pro-
duces, prepares or processes a formulated product
comprising a mixture of endrin and inert materials
or other diluents into a product intended for appli-
cation in any use registered under the Federal In-
secticide, Fungicide and Rodenticide Act, as
amended (7 U.S.C. 135, et seq.).
(3) The ambient water criterion for endrin in
navigable waters is 0.004 |_lg/l.
(b) Endrin manufacturer—(1) Applicability, (i)
These standards or prohibitions apply to:
(A) All discharges of process wastes; and
(B) All discharges from the manufacturing
areas, loading and unloading areas, storage areas
and other areas which are subject to direct con-
tamination by endrin as a result of the manufactur-
ing process, including but not limited to:
(7) Stormwater and other runoff except as here-
inafter provided in paragraph (b)(l)(ii) of this sec-
tion; and
(2) Water used for routine cleanup or cleanup of
spills.
(ii) These standards do not apply to stormwater
runoff or other discharges from areas subject to
contamination solely by fallout from air emissions
of endrin; or to stormwater runoff that exceeds
that from the ten year 24-hour rainfall event.
(2) Analytical method acceptable—Environ-
mental Protection Agency method specified in 40
CFR part 136.
(3) Effluent standard—(i) Existing sources. Dis-
charges from an endrin manufacturer shall not
contain endrin concentrations exceeding an aver-
age per working day of 1.5 |lg/l calculated over
any calendar month; and shall not exceed a
monthly average daily loading of 0.0006 kg/kkg of
endrin produced; and shall not exceed 7.5 |lg/l in
a sample(s) representing any working day.
(ii) New sources. Discharges from an endrin
manufacturer shall not contain endrin concentra-
tions exceeding an average per working day of 0.1
|_lg/l calculated over any calendar month; and shall
not exceed a monthly average daily loading of
0.00004 kg/kkg of endrin produced; and shall not
exceed 0.5 |lg/l in a sample(s) representing any
working day.
(iii) Mass emission standard during shutdown of
production. In computing the allowable monthly
average daily loading figure required under the
preceding paragraphs (b)(3) (i) and (ii) of this sec-
tion, for any calendar month for which there is no
endrin being manufactured at any plant or facility
which normally contributes to the discharge which
is subject to these standards, the applicable pro-
duction value shall be deemed to be the average
monthly production level for the most recent pre-
ceding 360 days of actual operation of the plant
or facility.
(c) Endrin formulator—(1) Applicability, (i)
These standards or prohibitions apply to:
(A) All discharges of process wastes; and
(B) All discharges from the formulating areas,
loading and unloading areas, storage areas and
other areas which are subject to direct contamina-
tion by endrin as a result of the formulating proc-
ess, including but not limited to: (7) Stormwater
and other runoff except as hereinafter provided in
paragraph (c)(l)(ii) of this section; and (2) water
used for routine cleanup or cleanup of spills.
(ii) These standards do not apply to stormwater
runoff or other discharges from areas subject to
contamination solely by fallout from air emissions
of endrin; or to storm-water runoff that exceeds
that from the ten year 24-hour rainfall event.
(2) Analytical method acceptable—Environ-
mental Protection Agency method specified in 40
CFR part 136, except that a 1-liter sample size is
required to increase the analytical sensitivity.
(3) Effluent standard—(i) Existing sources.
Endrin is prohibited in any discharge from any
endrin formulator.
(ii) New sources—Endrin is prohibited in any
discharge from any endrin formulator.
(d) The standards set forth in this section shall
apply to the total combined weight or concentra-
tion of endrin, excluding any associated element or
compound.
§129.103 Toxaphene.
(a) Specialized definitions. (1) Toxaphene
manufacturer means a manufacturer, excluding
any source which is exclusively a toxaphene for-
mulator, who produces, prepares or processes
toxaphene or who uses toxaphene as a material in
the production, preparation or processing of an-
other synthetic organic substance.
(2) Toxaphene formulator means a person who
produces, prepares or processes a formulated prod-
uct comprising a mixture of toxaphene and inert
materials or other diluents into a product intended
for application in any use registered under the
Federal Insecticide, Fungicide and Rodenticide
Act, as amended (7 U.S.C. 135, et seq.).
(3) The ambient water criterion for toxaphene in
navigable waters is 0.005 |lg/l.
(b) Toxaphene manufacturer—(1) Applicability.
(i) These standards or prohibitions apply to:
(A) All discharges of process wastes; and
(B) All discharges from the manufacturing
areas, loading and unloading areas, storage areas
and other areas which are subject to direct con-
tamination by toxaphene as a result of the manu-
facturing process, including but not limited to: (7)
Stormwater and other runoff except as hereinafter
provided in paragraph (b)(l)(ii) of this section;
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§129.104
and (2) water used for routine cleanup or cleanup
of spills.
(ii) These standards do not apply to stormwater
runoff or other discharges from areas subject to
contamination solely by fallout from air emissions
of toxaphene; or to stormwater runoff that exceeds
that from the ten year 24-hour rainfall event.
(2) Analytical method acceptable—Environ-
mental Protection Agency method specified in 40
CFR part 136.
(3) Effluent standard—(i) Existing sources. Dis-
charges from a toxaphene manufacturer shall not
contain toxaphene concentrations exceeding an av-
erage per working day of 1.5 |_lg/l calculated over
any calendar month; and shall not exceed a
monthly average daily loading of 0.00003 kg/kkg
of toxaphene produced, and shall not exceed 7.5
|lg/l in a sample(s) representing any working day.
(ii) New sources. Discharges from a toxaphene
manufacturer shall not contain toxaphene con-
centrations exceeding an average per working day
of 0.1 |lg/l calculated over any calendar month;
and shall not exceed a monthly average daily load-
ing of 0.000002 kg/kkg of toxaphene produced,
and shall not exceed 0.5 |l/l in a sample(s) rep-
resenting any working day.
(iii) Mass emission during shutdown of produc-
tion. In computing the allowable monthly average
daily loading figure required under the preceding
paragraphs (b)(3)(i) and (ii) of this section, for any
calendar month for which there is no toxaphene
being manufactured at any plant or facility which
normally contributes to the discharge which is
subject to these standards, the applicable produc-
tion value shall be deemed to be the average
monthly production level for the most recent pre-
ceding 360 days of actual operation of the plant
or facility.
(c) Toxaphene formulator—(1) Applicability, (i)
These standards or prohibitions apply to:
(A) All discharges of process wastes; and
(B) All discharges from the formulating areas,
loading and unloading areas, storage areas and
other areas which are subject to direct contamina-
tion by toxaphene as a result of the formulating
process, including but not limited to: (7)
Stormwater and other runoff except as hereinafter
provided in paragraph (c)(l)(ii) of this section; and
(2) water used for routine cleanup or cleanup of
spills.
(ii) These standards do not apply to stormwater
runoff or other discharges from areas subject to
contamination solely by fallout from air emissions
of toxaphene; or to stormwater runoff that exceeds
that from the ten year 24-hour rainfall event.
(2) Analytical method acceptable—Environ-
mental Protection Agency method specified in 40
CFR part 136, except that a 1-liter sample size is
required to increase the analytical sensitivity.
(3) Effluent standards—(i) Existing sources.
Toxaphene is prohibited in any discharge from any
toxaphene formulator.
(ii) New sources. Toxaphene is prohibited in
any discharge from any toxaphene formulator.
(d) The standards set forth in this section shall
apply to the total combined weight or concentra-
tion of toxaphene, excluding any associated ele-
ment or compound.
§129.104 Benzidine.
(a) Specialized definitions. (1) Benzidine Manu-
facturer means a manufacturer who produces ben-
zidine or who produces benzidine as an intermedi-
ate product in the manufacture of dyes commonly
used for textile, leather and paper dyeing.
(2) Benzidine-Based Dye Applicator means an
owner or operator who uses benzidine-based dyes
in the dyeing of textiles, leather or paper.
(3) The ambient water criterion for benzidine in
navigable waters is 0.1 |lg/l.
(b) Benzidine manufacturer—(1) Applicability.
(i) These standards apply to:
(A) All discharges into the navigable waters of
process wastes, and
(B) All discharges into the navigable waters of
wastes containing benzidine from the manufactur-
ing areas, loading and unloading areas, storage
areas, and other areas subject to direct contamina-
tion by benzidine or benzidine-containing product
as a result of the manufacturing process, including
but not limited to:
(7) Stormwater and other runoff except as here-
inafter provided in paragraph (b)(l)(ii) of this sec-
tion, and
(2) Water used for routine cleanup or cleanup of
spills.
(ii) These standards do not apply to stormwater
runoff or other discharges from areas subject to
contamination solely by fallout from air emissions
of benzidine; or to stormwater runoff that exceeds
that from the ten year 24-hour rainfall event.
(2) Analytical method acceptable—Environ-
mental Protection Agency method specified in 40
CFR part 136.
(3) Effluent standards—(i) Existing sources.
Discharges from a benzidine manufacturer shall
not contain benzidine concentrations exceeding an
average per working day of 10 |lg/l calculated
over any calendar month, and shall not exceed a
monthly average daily loading of 0.130 kg/kkg of
benzidine produced, and shall not exceed 50 |lg/
1 in a sample(s) representing any working day.
(ii) New sources. Discharges from a benzidine
manufacturer shall not contain benzidine con-
centrations exceeding an average per working day
of 10 |lg/l calculated over any calendar month,
and shall not exceed a monthly average daily load-
ing of 0.130 kg/kkg of benzidine produced, and
-------
§129.105
shall not exceed 50 |lg/l in a sample(s) represent-
ing any working day.
(4) The standards set forth in this paragraph (b)
shall apply to the total combined weight or con-
centration of benzidine, excluding any associated
element or compound.
(c) Benzidine-based dye applicators—(1) Appli-
cability, (i) These standards apply to:
(A) All discharges into the navigable waters of
process wastes, and
(B) All discharges into the navigable waters of
wastes containing benzidine from the manufactur-
ing areas, loading and unloading areas, storage
areas, and other areas subject to direct contamina-
tion by benzidine or benzidine-containing product
as a result of the manufacturing process, including
but not limited to:
(7) Stormwater and other runoff except as here-
inafter provided in paragraph (c)(l)(ii) of this sec-
tion, and
(2) Water used for routine cleanup or cleanup of
spills.
(ii) These standards do not apply to stormwater
runoff or other discharges from areas subject to
contamination solely by fallout from air emissions
of benzidine; or to stormwater that exceeds that
from the ten year 24-hour rainfall event.
(2) Analytical method acceptable, (i) Environ-
mental Protection Agency method specified in 40
CFR part 136; or
(ii) Mass balance monitoring approach which
requires the calculation of the benzidine concentra-
tion by dividing the total benzidine contained in
dyes used during a working day (as certified in
writing by the manufacturer) by the total quantity
of water discharged during the working day.
{Comment The Regional Administrator (or State Director,
if appropriate) shall rely entirely upon the method speci-
fied in 40 CFR part 136 in analyses performed by him
for enforcement purposes.]
(3) Effluent standards—(i) Existing sources.
Discharges from benzidine-based dye applicators
shall not contain benzidine concentrations exceed-
ing an average per working day of 10 |lg/l cal-
culated over any calendar month; and shall not ex-
ceed 25 |lg/l in a sample(s) or calculation(s) rep-
resenting any working day.
(ii) New sources. Discharges from benzidine-
based dye applicators shall not contain benzidine
concentrations exceeding an average per working
day of 10 |lg/l calculated over any calendar
month; and shall not exceed 25 |_lg/l in a sample(s)
or calculation(s) representing any working day.
(4) The standards set forth in this paragraph (c)
shall apply to the total combined concentrations of
benzidine, excluding any associated element or
compound.
[42 FR2620, Jan. 12, 1977]
§129.105 Polychlorinated biphenyls
(PCBs).
(a) Specialized definitions. (1) PCS Manufac-
turer means a manufacturer who produces poly-
chlorinated biphenyls.
(2) Electrical capacitor manufacturer means a
manufacturer who produces or assembles electrical
capacitors in which PCB or PCB-containing com-
pounds are part of the dielectric.
(3) Electrical transformer manufacturer means a
manufacturer who produces or assembles electrical
transformers in which PCB or PCB-containing
compounds are part of the dielectric.
(4) The ambient water criterion for PCBs in
navigable waters is 0.001 |lg/l.
(b) PCB manufacturer—(1) Applicability, (i)
These standards or prohibitions apply to:
(A) All discharges of process wastes;
(B) All discharges from the manufacturing or
incinerator areas, loading and unloading areas,
storage areas, and other areas which are subject to
direct contamination by PCBs as a result of the
manufacturing process, including but not limited
to:
(7) Stormwater and other runoff except as here-
inafter provided in paragraph (b)(l)(ii) of this sec-
tion; and
(2) Water used for routine cleanup or cleanup of
spills.
(ii) These standards do not apply to stormwater
runoff or other discharges from areas subject to
contamination solely by fallout from air emissions
of PCBs; or to stormwater runoff that exceeds that
from the ten-year 24-hour rainfall event.
(2) Analytical Method Acceptable—Environ-
mental Protection Agency method specified in 40
CFR part 136 except that a 1-liter sample size is
required to increase analytical sensitivity.
(3) Effluent standards—(i) Existing sources.
PCBs are prohibited in any discharge from any
PCB manufacturer;
(ii) New sources. PCBs are prohibited in any
discharge from any PCB manufacturer.
(c) Electrical capacitor manufacturer—(1) Ap-
plicability, (i) These standards or prohibitions
apply to:
(A) All discharges of process wastes; and
(B) All discharges from the manufacturing or
incineration areas, loading and unloading areas,
storage areas and other areas which are subject to
direct contamination by PCBs as a result of the
manufacturing process, including but not limited
to:
(7) Stormwater and other runoff except as here-
inafter provided in paragraph (c)(l)(ii) of this sec-
tion; and
(2) Water used for routine cleanup or cleanup of
spills.
-------
§129.105
(ii) These standards do not apply to stormwater
runoff or other discharges from areas subject to
contamination solely by fallout from air emissions
of PCBs; or to stormwater runoff that exceeds that
from the ten-year 24-hour rainfall event.
(2) Analytical method acceptable. Environ-
mental Protection Agency method specified in 40
CFR part 136, except that a 1-liter sample size is
required to increase analytical sensitivity.
(3) Effluent standards—(i) Existing sources.
PCBs are prohibited in any discharge from any
electrical capacitor manufacturer;
(ii) New sources. PCBs are prohibited in any
discharge from any electrical capacitor manufac-
turer.
(d) Electrical transformer manufacturer—(1)
Applicability, (i) These standards or prohibitions
apply to:
(A) All discharges of process wastes; and
(B) All discharges from the manufacturing or
incineration areas, loading and unloading areas,
storage areas, and other areas which are subject to
direct contamination by PCBs as a result of the
manufacturing process, including but not limited
to:
(7) Stormwater and other runoff except as here-
inafter provided in paragraph (d)(l)(ii) of this sec-
tion; and
(2) Water used for routine cleanup or cleanup of
spills.
(ii) These standards do not apply to stormwater
runoff or other discharges from areas subject to
contamination solely by fallout from air emissions
of PCBs; or to stormwater runoff that exceeds that
from the ten-year 24-hour rainfall event.
(2) Analytical method acceptable. Environ-
mental Protection Agency method specified in 40
CFR part 136, except that a 1-liter sample size is
required to increase analytical sensitivity.
(3) Effluent standards—(i) Existing sources.
PCBs are prohibited in any discharge from any
electrical transformer manufacturer;
(ii) New sources. PCBs are prohibited in any
discharge from any electrical transformer manufac-
turer.
(e) Adjustment of effluent standard for presence
of PCBs in intake water. Whenever a facility
which is subject to these standards has PCBs in its
effluent which result from the presence of PCBs
in its intake waters, the owner may apply to the
Regional Administrator (or State Director, if ap-
propriate), for a credit pursuant to the provisions
of § 129.6, where the source of the water supply
is the same body of water into which the dis-
charge is made. The requirement of paragraph (1)
of § 129.6(a), relating to the source of the water
supply, shall be waived, and such facility shall be
eligible to apply for a credit under § 129.6, upon
a showing by the owner or operator of such facil-
ity to the Regional Administrator (or State Direc-
tor, if appropriate) that the concentration of PCBs
in the intake water supply of such facility does not
exceed the concentration of PCBs in the receiving
water body to which the plant discharges its efflu-
ent.
[42 FR6555, Feb. 2, 1977]
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PART 141—NATIONAL PRIMARY
DRINKING WATER REGULATIONS
Sec.
141.1
141.2
141.3
141.4
141.5
141.6
Subpart A—General
Applicability.
Definitions.
Coverage.
Variances and exemptions.
Siting requirements.
Effective dates.
Subpart B—Maximum Contaminant
Levels
141.11 Maximum contaminant levels for inorganic
chemicals.
141.12 Maximum contaminant levels for organic chemi-
cals.
141.13 Maximum contaminant levels for turbidity.
141.15 Maximum contaminant levels for radium-226,
radium-228, and gross alpha particle radioactivity in
community water systems.
141.16 Maximum contaminant levels for beta particle
and photon radioactivity from man-made radio-
nuclides in community water systems.
Subpart C—Monitoring and Analytical
Requirements
141.21 Cohform sampling.
141.22 Turbidity sampling and analytical requirements.
141.23 Inorganic chemical sampling and analytical re-
quirements.
141.24 Organic chemicals other than total
trihalomethanes, sampling and analytical require-
ments.
141.25 Analytical methods for radioactivity.
141.26 Monitoring frequency for radioactivity in com-
munity water systems.
141.27 Alternate analytical techniques.
141.28 Certified laboratories.
141.29 Monitoring of consecutive public water systems.
141.30 Total trihalomethanes sampling, analytical and
other requirements.
Subpart D—Reporting, Public Notifica-
tion and Recordkeeping
141.31 Reporting requirements.
141.32 Public notification.
141.33 Record maintenance.
141.34 [Reserved]
141.35 Reporting and public notification for certain un-
regulated contaminants.
Subpart E—Special Regulations, In-
cluding Monitoring Regulations and
Prohibition on Lead Use
141.40 Special monitoring for inorganic and organic
contaminants.
141.41 Special monitoring for sodium.
141.42 Special monitoring for corrosivity characteristics.
141.43 Prohibition on use of lead pipes, solder, and
flux.
Subpart F—Maximum Contaminant
Level Goals
141.50 Maximum contaminant level goals for organic
contaminants.
141.51 Maximum contaminant level goals for inorganic
contaminants.
141.52 Maximum contaminant level goals for micro-
biological contaminants.
Subpart G—National Revised Primary
Drinking Water Regulations: Maxi-
mum Contaminant Levels
141.60 Effective dates.
141.61 Maximum contaminant levels for organic con-
taminants.
141.62 Maximum contaminant levels for inorganic con-
taminants.
141.63 Maximum contaminant levels (MCLs) for micro-
biological contaminants.
Subpart H—Filtration and Disinfection
141.70 General requirements.
141.71 Criteria for avoiding filtration.
141.72 Disinfection.
141.73 Filtration.
141.74 Analytical and monitoring requirements.
141.75 Reporting and recordkeeping requirements.
Subpart I—Control of Lead and Copper
141.80 General requirements.
141.81 Applicability of corrosion control treatment steps
to small, medium-size and large water systems.
141.82 Description of corrosion control treatment re-
quirements.
141.83 Source water treatment requirements.
141.84 Lead service line replacement requirements.
141.85 Public education and supplemental monitoring
requirements.
141.86 Monitoring requirements for lead and copper in
tap water.
141.87 Monitoring requirements for water quality pa-
rameters.
141.88 Monitoring requirements for lead and copper in
source water.
141.89 Analytical methods.
141.90 Reporting requirements.
141.91 Recordkeeping requirements.
Subpart J—Use of Non-Centralized
Treatment Devices
141.100 Criteria and procedures for public water sys-
tems using point-of-entry devices.
141.101 Use of other non-centralized treatment devices.
Subpart K—Treatment Techniques
141.110 General requirements.
141.111 Treatment techniques for aery lamide and
epichlorohydrin.
-------
§141.1
Subpart M — Information Collection Re-
quirements (ICR) for Public Water
Systems
141.140 Definitions specific to subpart M.
141.141 General requirements, applicability, and sched-
ule for information collection.
141.142 Disinfection byproduct and related monitoring.
141.143 Microbial monitoring.
141.144 Disinfection byproduct precursor removal stud-
ies.
SOURCE: 40 FR 59570, Dec. 24, 1975, unless otherwise
noted.
NOTE: For community water systems serving 75,000 or
more persons, monitoring must begin 1 year following
promulation and the effective date of the MCL is 2 years
following promulgation. For community water systems
serving 10,000 to 75,000 persons, monitoring must begin
within 3 years from the date of promulgation and the ef-
fective date of the MCL is 4 years from the date of pro-
mulgation. Effective immediately, systems that plan to
make significant modifications to their treatment proc-
esses for the purpose of complying with the TTHM MCL
are required to seek and obtain State approval of their
treatment modification plans. This note affects §§ 141.2,
141.6, 141.12, 141.24 and 141.30. For additional informa-
tion see 44 FR 68641, Nov. 29, 1979.
Subpart A — General
§141.1 Applicability.
This part establishes primary drinking water
regulations pursuant to section 1412 of the Public
Health Service Act, as amended by the Safe
Drinking Water Act (Pub. L. 93-523); and related
regulations applicable to public water systems.
§141.2 Definitions.
As used in this part, the term:
Act means the Public Health Service Act, as
amended by the Safe Drinking Water Act, Public
Law 93-523.
Action level, is the concentration of lead or cop-
per in water specified in §141.80(c) which deter-
mines, in some cases, the treatment requirements
contained in subpart I of this part that a water sys-
tem is required to complete.
Best available technology or BAT means the
best technology, treatment techniques, or other
means which the Administrator finds, after exam-
ination for efficacy under field conditions and not
solely under laboratory conditions, are available
(taking cost into consideration). For the purposes
of setting MCLs for synthetic organic chemicals,
any BAT must be at least as effective as granular
activated carbon.
Coagulation means a process using coagulant
chemicals and mixing by which colloidal and sus-
pended materials are destabilized and agglom-
erated into floes.
Community water system means a public water
system which serves at least 15 service connec-
tions used by year-round residents or regularly
serves at least 25 year-round residents.
Compliance cycle means the nine-year calendar
year cycle during which public water systems
must monitor. Each compliance cycle consists of
three three-year compliance periods. The first cal-
endar year cycle begins January 1, 1993 and ends
December 31, 2001; the second begins January 1,
2002 and ends December 31, 2010; the third be-
gins January 1, 2011 and ends December 31,
2019.
Compliance period means a three-year calendar
year period within a compliance cycle. Each com-
pliance cycle has three three-year compliance peri-
ods. Within the first compliance cycle, the first
compliance period runs from January 1, 1993 to
December 31, 1995; the second from January 1,
1996 to December 31, 1998; the third from Janu-
ary 1, 1999 to December 31, 2001.
Confluent growth means a continuous bacterial
growth covering the entire filtration area of a
membrane filter, or a portion thereof, in which
bacterial colonies are not discrete.
Contaminant means any physical, chemical, bio-
logical, or radiological substance or matter in
water.
Conventional filtration treatment means a series
of processes including coagulation, flocculation,
sedimentation, and filtration resulting in substan-
tial particulate removal.
Corrosion inhibitor means a substance capable
of reducing the corrosivity of water toward metal
plumbing materials, especially lead and copper, by
forming a protective film on the interior surface of
those materials.
CT or CTcalc is the product of "residual dis-
infectant concentration" (C) in mg/1 determined
before or at the first customer, and the correspond-
ing "disinfectant contact time" (T) in minutes,
i.e., "C" x "T". If a public water system applies
disinfectants at more than one point prior to the
first customer, it must determine the CT of each
disinfectant sequence before or at the first cus-
tomer to determine the total percent inactivation or
"total inactivation ratio." In determining the total
inactivation ratio, the public water system must
determine the residual disinfectant concentration of
each disinfection sequence and corresponding con-
tact time before any subsequent disinfection appli-
cation point(s). "CTgg.g" is the CT value required
for 99.9 percent (3-log) inactivation of Giardia
lamblia cysts. CTgg.g for a variety of disinfectants
and conditions appear in tables 1.1-1.6, 2.1, and
3.1 of § 141.74(b)(3).
-------
§141.2
CTcalc
CT9,
is the inactivation ratio. The sum of the inactiva-
tion ratios, or total inactivation ratio shown as
(CTcalc)
(CT99.9)
is calculated by adding together the inactivation
ratio for each disinfection sequence. A total inac-
tivation ratio equal to or greater than 1.0 is as-
sumed to provide a 3-log inactivation of Giardia
lamblia cysts.
Diatomaceous earth filtration means a process
resulting in substantial particulate removal in
which (1) a precoat cake of diatomaceous earth
filter media is deposited on a support membrance
(septum), and (2) while the water is filtered by
passing through the cake on the septum, additional
filter media known as body feed is continuously
added to the feed water to maintain the permeabil-
ity of the filter cake.
Direct filtration means a series of processes in-
cluding coagulation and filtration but excluding
sedimentation resulting in substantial particulate
removal.
Disinfectant means any oxidant, including but
not limited to chlorine, chlorine dioxide,
chloramines, and ozone added to water in any part
of the treatment or distribution process, that is in-
tended to kill or inactivate pathogenic microorga-
nisms.
Disinfectant contact time ("T" in CT calcula-
tions) means the time in minutes that it takes for
water to move from the point of disinfectant appli-
cation or the previous point of disinfectant residual
measurement to a point before or at the point
where residual disinfectant concentration ("C") is
measured. Where only one "C" is measured, "T"
is the time in minutes that it takes for water to
move from the point of disinfectant application to
a point before or at where residual disinfectant
concentration ("C") is measured. Where more
than one "C" is measured, "T" is (a) for the first
measurement of "C", the time in minutes that it
takes for water to move from the first or only
point of disinfectant application to a point before
or at the point where the first "C" is measured
and (b) for subsequent measurements of "C", the
time in minutes that it takes for water to move
from the previous "C" measurement point to the
"C" measurement point for which the particular
"T" is being calculated. Disinfectant contact time
in pipelines must be calculated based on "plug
flow" by dividing the internal volume of the pipe
by the maximum hourly flow rate through that
pipe. Disinfectant contact time within mixing ba-
sins and storage reservoirs must be determined by
tracer studies or an equivalent demonstration.
Disinfection means a process which inactivates
pathogenic organisms in water by chemical
oxidants or equivalent agents.
Domestic or other non-distribution system
plumbing problem means a coliform contamination
problem in a public water system with more than
one service connection that is limited to the spe-
cific service connection from which the coliform-
positive sample was taken.
Dose equivalent means the product of the ab-
sorbed dose from ionizing radiation and such fac-
tors as account for differences in biological
effectiveness due to the type of radiation and its
distribution in the body as specified by the Inter-
national Commission on Radiological Units and
Measurements (ICRU).
Effective corrosion inhibitor residual, for the
purpose of subpart I of this part only, means a
concentration sufficient to form a passivating film
on the interior walls of a pipe.
Filtration means a process for removing particu-
late matter from water by passage through porous
media.
First draw sample means a one-liter sample of
tap water, collected in accordance with
§ 141.86(b)(2), that has been standing in plumbing
pipes at least 6 hours and is collected without
flushing the tap.
Flocculation means a process to enhance ag-
glomeration or collection of smaller floe particles
into larger, more easily settleable particles through
gentle stirring by hydraulic or mechanical means.
Ground water under the direct influence of sur-
face water means any water beneath the surface of
the ground with (1) significant occurrence of in-
sects or other macroorganisms, algae, or large-di-
ameter pathogens such as Giardia lamblia, or (2)
significant and relatively rapid shifts in water
characteristics such as turbidity, temperature, con-
ductivity, or pH which closely correlate to cli-
matological or surface water conditions. Direct in-
fluence must be determined for individual sources
in accordance with criteria established by the
State. The State determination of direct influence
may be based on site-specific measurements of
water quality and/or documentation of well con-
struction characteristics and geology with field
evaluation.
Gross alpha particle activity means the total ra-
dioactivity due to alpha particle emission as in-
ferred from measurements on a dry sample.
Gross beta particle activity means the total ra-
dioactivity due to beta particle emission as in-
ferred from measurements on a dry sample.
Halogen means one of the chemical elements
chlorine, bromine or iodine.
-------
§141.2
Initial compliance period means the first full
three-year compliance period which begins at least
18 months after promulgation, except for contami-
nants listed at § 141.61(a) (19)-(21), (c) (19)-(33),
and §141.62(b) (11)-(15), initial compliance pe-
riod means the first full three-year compliance pe-
riod after promulgation for systems with 150 or
more service connections (January 1993-Decem-
ber 1995), and first full three-year compliance pe-
riod after the effective date of the regulation (Jan-
uary 1996-December 1998) for systems having
fewer than 150 service connections.
Large water system, for the purpose of subpart
I of this part only, means a water system that
serves more than 50,000 persons.
Lead service line means a service line made of
lead which connects the water main to the build-
ing inlet and any lead pigtail, gooseneck or other
fitting which is connected to such lead line.
Legionella means a genus of bacteria, some spe-
cies of which have caused a type of pneumonia
called Legionnaires Disease.
Man-made beta particle and photon emitters
means all radionuclides emitting beta particles
and/or photons listed in Maximum Permissible
Body Burdens and Maximum Permissible Con-
centration of Radionuclides in Air or Water for
Occupational Exposure, NBS Handbook 69, except
the daughter products of thorium-232, uranium-
235 and uranium-238.
Maximum contaminant level means the maxi-
mum permissable level of a contaminant in water
which is delivered to any user of a public water
system.
Maximum contaminant level goal or MCLG
means the maximum level of a contaminant in
drinking water at which no known or anticipated
adverse effect on the health of persons would
occur, and which allows an adequate margin of
safety. Maximum contaminant level goals are non-
enforceable health goals.
Maximum Total Trihalomethane Potential
(MTP) means the maximum concentration of total
trihalomethanes produced in a given water con-
taining a disinfectant residual after 7 days at a
temperature of 25° C or above.
Medium-size water system, for the purpose of
subpart I of this part only, means a water system
that serves greater than 3,300 and less than or
equal to 50,000 persons.
Near the first service connection means at one
of the 20 percent of all service connections in the
entire system that are nearest the water supply
treatment facility, as measured by water transport
time within the distribution system.
Non-community water system means a public
water system that is not a community water sys-
tem.
Non-transient non-community water system or
NTNCWS means a public water system that is not
a community water system and that regularly
serves at least 25 of the same persons over 6
months per year.
Optimal corrosion control treatment, for the
purpose of subpart I of this part only, means the
corrosion control treatment that minimizes the lead
and copper concentrations at users' taps while in-
suring that the treatment does not cause the water
system to violate any national primary drinking
water regulations.
Performance evaluation sample means a ref-
erence sample provided to a laboratory for the
purpose of demonstrating that the laboratory can
successfully analyze the sample within limits of
performance specified by the Agency. The true
value of the concentration of the reference mate-
rial is unknown to the laboratory at the time of the
analysis.
Person means an individual; corporation; com-
pany; association; partnership; municipality; or
State, Federal, or tribal agency.
Picocurie (pCi) means the quantity of radio-
active material producing 2.22 nuclear trans-
formations per minute.
Point of disinfectant application is the point
where the disinfectant is applied and water down-
stream of that point is not subject to recontamina-
tion by surface water runoff.
Point-of-entry treatment device is a treatment
device applied to the drinking water entering a
house or building for the purpose of reducing con-
taminants in the drinking water distributed
throughout the house or building.
Point-of-use treatment device is a treatment de-
vice applied to a single tap used for the purpose
of reducing contaminants in drinking water at that
one tap.
Public water system or PWS means a system for
the provision to the public of piped water for
human consumption, if such system has at least
fifteen service connections or regularly serves an
average of at least twenty-five individuals daily at
least 60 days out of the year. Such term includes
(1) any collection, treatment, storage, and distribu-
tion facilities under control of the operator of such
system and used primarily in connection with such
system, and (2) any collection or pretreatment
storage facilities not under such control which are
used primarily in connection with such system. A
public water system is either a "community water
system" or a "noncommunity water system."
Rem means the unit of dose equivalent from
ionizing radiation to the total body or any internal
organ or organ system. A "millirem (mrem)" is
1/1000 of arem.
-------
§141.4
Repeat compliance period means any subse-
quent compliance period after the initial compli-
ance period.
Residual disinfectant concentration ("C" in CT
calculations) means the concentration of disinfect-
ant measured in mg/1 in a representative sample of
water.
Sanitary survey means an onsite review of the
water source, facilities, equipment, operation and
maintenance of a public water system for the pur-
pose of evaluating the adequacy of such source,
facilities, equipment, operation and maintenance
for producing and distributing safe drinking water.
Sedimentation means a process for removal of
solids before filtration by gravity or separation.
Service line sample means a one-liter sample of
water collected in accordance with § 141.86(b)(3),
that has been standing for at least 6 hours in a
service line.
Single family structure, for the purpose of sub-
part I of this part only, means a building con-
structed as a single-family residence that is cur-
rently used as either a residence or a place of
business.
Slow sand filtration means a process involving
passage of raw water through a bed of sand at low
velocity (generally less than 0.4 m/h) resulting in
substantial particulate removal by physical and bi-
ological mechanisms.
Small water system, for the purpose of subpart
I of this part only, means a water system that
serves 3,300 persons or fewer.
Standard sample means the aliquot of finished
drinking water that is examined for the presence
of coliform bacteria.
State means the agency of the State or Tribal
government which has jurisdiction over public
water systems. During any period when a State or
Tribal government does not have primary enforce-
ment responsibility pursuant to section 1413 of the
Act, the term "State" means the Regional Admin-
istrator, U.S. Environmental Protection Agency.
Supplier of water means any person who owns
or operates a public water system.
Surface water means all water which is open to
the atmosphere and subject to surface runoff.
System with a single service connection means
a system which supplies drinking water to con-
sumers via a single service line.
Too numerous to count means that the total
number of bacterial colonies exceeds 200 on a 47-
mm diameter membrane filter used for coliform
detection.
Total trihalomethanes (TTHM) means the sum
of the concentration in milligrams per liter of the
trihalomethane compounds (trichloromethane
[chloroform], dibromochloromethane,
bromodichloromethane and tribromomethane
[bromoform]), rounded to two significant figures.
Transient non-community water system or TWS
means a non-community water system that does
not regularly serve at least 25 of the same persons
over six months per year.
Trihalomethane (THM) means one of the family
of organic compounds, named as derivatives of
methane, wherein three of the four hydrogen
atoms in methane are each substituted by a halo-
gen atom in the molecular structure.
Virus means a virus of fecal origin which is in-
fectious to humans by waterborne transmission.
Waterborne disease outbreak means the signifi-
cant occurrence of acute infectious illness,
epidemiologically associated with the ingestion of
water from a public water system which is defi-
cient in treatment, as determined by the appro-
priate local or State agency.
[40 FR 59570, Dec. 24, 1975, as amended at 41 FR
28403, July 9, 1976; 44 FR 68641, Nov. 29, 1979; 51 FR
11410, Apr. 2, 1986; 52 FR 20674, June 2, 1987; 52 FR
25712, July 8, 1987; 53 FR 37410, Sept. 26, 1988; 54 FR
27526, 27562, June 29, 1989; 56 FR 3578, Jan. 30, 1991;
56 FR 26547, June 7, 1991; 57 FR 31838, July 17, 1992;
59 FR 34322, July 1, 1994; 61 FR 24368, May 14, 1996]
EFFECTIVE DATE NOTE: At 61 FR 24368, May 14,
1996, §141.2 was amended by adding "or PWS" to the
definition for "Public water system", effective June 18,
1996 and will expire on Dec. 31, 2000.
§141.3 Coverage.
This part shall apply to each public water sys-
tem, unless the public water system meets all of
the following conditions:
(a) Consists only of distribution and storage fa-
cilities (and does not have any collection and
treatment facilities);
(b) Obtains all of its water from, but is not
owned or operated by, a public water system to
which such regulations apply:
(c) Does not sell water to any person; and
(d) Is not a carrier which conveys passengers in
interstate commerce.
§ 141.4 Variances and exemptions.
(a) Variances or exemptions from certain provi-
sions of these regulations may be granted pursuant
to sections 1415 and 1416 of the Act by the entity
with primary enforcement responsibility, except
that variances or exemptions from the MCL for
total coliforms and variances from any of the
treatment technique requirements of subpart H of
this part may not be granted.
(b) EPA has stayed the effective date of this
section relating to the total coliform MCL of
§ 141.63(a) for systems that demonstrate to the
State that the violation of the total coliform MCL
is due to a persistent growth of total coliforms in
-------
§141.5
the distribution system rather than fecal or patho-
genic contamination, a treatment lapse or defi-
ciency, or a problem in the operation or mainte-
nance of the distribution system.
[54 FR 27562, June 29, 1989, as amended at 56 FR 1557,
Jan. 15, 1991]
§ 141.5 Siting requirements.
Before a person may enter into a financial com-
mitment for or initiate construction of a new pub-
lic water system or increase the capacity of an ex-
isting public water system, he shall notify the
State and, to the extent practicable, avoid locating
part or all of the new or expanded facility at a site
which:
(a) Is subject to a significant risk from earth-
quakes, floods, fires or other disasters which could
cause a breakdown of the public water system or
a portion thereof; or
(b) Except for intake structures, is within the
floodplain of a 100-year flood or is lower than
any recorded high tide where appropriate records
exist. The U.S. Environmental Protection Agency
will not seek to override land use decisions affect-
ing public water systems siting which are made at
the State or local government levels.
§141.6 Effective dates.
(a) Except as provided in paragraphs (a) through
(i) of this section, and in § 141.80(a)(2), the regu-
lations set forth in this part shall take effect on
June 24, 1977.
(b) The regulations for total trihalomethanes set
forth in §141.12(c) shall take effect 2 years after
the date of promulgation of these regulations for
community water systems serving 75,000 or more
individuals, and 4 years after the date of promul-
gation for communities serving 10,000 to 74,999
individuals.
(c) The regulations set forth in §§141.11 (a),
(d) and (e); 141.14(a)(l); 141.14(b)(l)(i);
141.14(b)(2)(i); 141.14(d); 141.21 (a), (c) and (i);
141.22 (a) and (e); 141.23 (a)(3) and (a)(4);
141.23(f); 141.24(a)(3); 141.24 (e) and (f);
141.25(e); 141.27(a); 141.28 (a) and (b); 141.31
(a), (d) and (e); 141.32(b)(3); and 141.32(d) shall
take effect immediately upon promulgation.
(d) The regulations set forth in §141.41 shall
take effect 18 months from the date of promulga-
tion. Suppliers must complete the first round of
sampling and reporting within 12 months follow-
ing the effective date.
(e) The regulations set forth in § 141.42 shall
take effect 18 months from the date of promulga-
tion. All requirements in § 141.42 must be com-
pleted within 12 months following the effective
date.
(f) The regulations set forth in §141.11(c) and
§ 141.23(g) are effective May 2, 1986. Section
141.23(g)(4) is effective October 2, 1987.
(g) The regulations contained in § 141.6, para-
graph (c) of the table in 141.12, and 141.62(b)(l)
are effective July 1, 1991. The regulations con-
tained in §§141.11(b), 141.23, 141.24, 142.57(b),
143.4(b)(12) and (b)(13), are effective July 30,
1992. The regulations contained in the revisions to
§§141.32(e) (16), (25) through (27) and (46);
141.61(c)(16); and 141.62(b)(3) are effective Janu-
ary 1, 1993. The effective date of regulations con-
tained in § 141.61(c) (2), (3), and (4) is postponed.
(h) Regulations for the analytic methods listed
at § 141.23(k)(4) for measuring antimony, beryl-
lium, cyanide, nickel, and thallium are effective
August 17, 1992. Regulations for the analytic
methods listed at § 141.24(f)(16) for
dichloromethane, 1,2,4-trichlorobenzene, and
1,1,2-trichloroethane are effective August 17,
1992. Regulations for the analytic methods listed
at § 141.24(h)(12) for measuring dalapon, dinoseb,
diquat, endothall, endrin, glyphosate, oxamyl,
picloram, simazine, benzo(a)pyrene, di(2-
ethylhexyl)adipate, di(2-ethylhexyl)phthalate, hexa-
chlorobenzene, hexachlorocyclopentadiene, and
2,3,7,8-TCDD are effective August 17, 1992. The
revision to §141.12(a) promulgated on July 17,
1992 is effective on August 17, 1992.
(i) Regulations for information collection re-
quirements listed in subpart M are effective Au-
gust 14, 1996, and shall remain effective until De-
cember 31, 2000.
[44 FR 68641, Nov. 29, 1979, as amended at 45 FR
57342, Aug. 27, 1980; 47 FR 10998, Mar. 12, 1982; 51
FR 11410, Apr. 2, 1986; 56 FR 30274, July 1, 1991; 57
FR 22178, May 27, 1992; 57 FR 31838, July 17, 1992;
59 FR 34322, July 1, 1994; 61 FR 24368, May 14, 1996]
EFFECTIVE DATE NOTE: At 61 FR 24368, May 14,
1996, § 141.6 is amended in paragraph (a) by revising the
reference "(a) through (h)" to read "(a) through (i)" and
by adding paragraph (i), effective June 18, 1996 and will
expire on Dec. 31, 2000.
Subpart B—Maximum
Contaminant Levels
§141.11 Maximum contaminant levels
for inorganic chemicals.
(a) The maximum contaminant level for arsenic
applies only to community water systems. Compli-
ance with the MCL for arsenic is calculated pursu-
ant to §141.23.
(b) The maximum contaminant level for arsenic
is 0.05 milligrams per liter.
(c) [Reserved]
(d) At the discretion of the State, nitrate levels
not to exceed 20 mg/1 may be allowed in a non-
-------
§141.16
community water system if the supplier of water
demonstrates to the satisfaction of the State that:
(1) Such water will not be available to children
under 6 months of age; and
(2) There will be continuous posting of the fact
that nitrate levels exceed 10 mg/1 and the potential
health effects of exposure; and
(3) Local and State public health authorities will
be notified annually of nitrate levels that exceed
10 mg/1; and
(4) No adverse health effects shall result.
[40 FR 59570, Dec. 24, 1975, as amended at 45 FR
57342, Aug. 27, 1980; 47 FR 10998, Mar. 12, 1982; 51
FR 11410, Apr. 2, 1986; 56 FR 3578, Jan. 30, 1991; 56
FR 26548, June 7, 1991; 56 FR 30274, July 1, 1991; 56
FR 32113, July 15, 1991; 60 FR 33932, June 29, 1995]
§141.12 Maximum contaminant levels
for organic chemicals.
The following are the maximum contaminant
levels for organic chemicals. The maximum con-
taminant levels for organic chemicals in paragraph
(a) of this section apply to all community water
systems. Compliance with the maximum contami-
nant level in paragraph (a) of this section is cal-
culated pursuant to § 141.24. The maximum con-
taminant level for total trihalomethanes in para-
graph (c) of this section applies only to
community water systems which serve a popula-
tion of 10,000 or more individuals and which add
a disinfectant (oxidant) to the water in any part of
the drinking water treatment process. Compliance
with the maximum contaminant level for total
trihalomethanes is calculated pursuant to § 141.30.
(c) Total trihalomethanes (the sum of the con-
centrations of bromodichloromethane,
dibromochloromethane, tribromomethane
(bromoform) and trichloromethane (chloro-
form))
Level, milli-
grams per
liter
0.10
[56 FR 3578, Jan. 30, 1991, as amended at 57 FR 31838,
July 17, 1992]
§141.13 Maximum contaminant levels
for turbidity.
The maximum contaminant levels for turbidity
are applicable to both community water systems
and non-community water systems using surface
water sources in whole or in part. The maximum
contaminant levels for turbidity in drinking water,
measured at a representative entry point(s) to the
distribution system, are:
EDITORIAL NOTE: At 54 FR 27527, June 29, 1988,
§ 141.13 was amended by adding introductory text, effec-
tive December 31, 1990. This section already contains an
introductory text.
The requirements in this section apply to
unfiltered systems until December 30, 1991, unless
the State has determined prior to that date, in writ-
ing pursuant to § 1412(b)(7)(C)(iii), that filtration
is required. The requirements in this section apply
to filtered systems until June 29, 1993. The re-
quirements in this section apply to unfiltered sys-
tems that the State has determined, in writing pur-
suant to § 1412(b)(7)(C)(iii), must install filtration,
until June 29, 1993, or until filtration is installed,
whichever is later.
(a) One turbidity unit (TU), as determined by a
monthly average pursuant to § 141.22, except that
five or fewer turbidity units may be allowed if the
supplier of water can demonstrate to the State that
the higher turbidity does not do any of the follow-
ing:
(1) Interfere with disinfection;
(2) Prevent maintenance of an effective dis-
infectant agent throughout the distribution system;
or
(3) Interfere with microbiological determina-
tions.
(b) Five turbidity units based on an average for
two consecutive days pursuant to § 141.22.
[40 FR 59570, Dec. 24, 1975]
§141.15 Maximum contaminant levels
for radium-226, radium-228, and
gross alpha particle radioactivity in
community water systems.
The following are the maximum contaminant
levels for radium-226, radium-228, and gross
alpha particle radioactivity:
(a) Combined radium-226 and radium-228—5
pCi/1.
(b) Gross alpha particle activity (including ra-
dium-226 but excluding radon and uranium)—15
pCi/1.
[41 FR 28404, July 9, 1976]
§141.16 Maximum contaminant levels
for beta particle and photon radio-
activity from man-made radio-
nuclides in community water sys-
tems.
(a) The average annual concentration of beta
particle and photon radioactivity from man-made
radionuclides in drinking water shall not produce
an annual dose equivalent to the total body or any
internal organ greater than 4 millirem/year.
(b) Except for the radionuclides listed in Table
A, the concentration of man-made radionuclides
causing 4 mrem total body or organ dose equiva-
lents shall be calculated on the basis of a 2 liter
per day drinking water intake using the 168 hour
-------
§141.21
data listed in "Maximum Permissible Body Bur-
dens and Maximum Permissible Concentration of
Radionuclides in Air or Water for Occupational
Exposure," NBS Handbook 69 as amended Au-
gust 1963, U.S. Department of Commerce. If two
or more radionuclides are present, the sum of their
annual dose equivalent to the total body or to any
organ shall not exceed 4 millirem/year.
TABLE A—AVERAGE ANNUAL CONCENTRATIONS
ASSUMED TO PRODUCE A TOTAL BODY OR
ORGAN DOSE OF 4 MREM/YR
TOTAL COLIFORM MONITORING FREQUENCY FOR
COMMUNITY WATER SYSTEMS—Continued
Radionuclide
Tritium
Strontium-90
Critical organ
Total body
Bone marrow
pCi per
liter
20,000
8
[41 FR 28404, July 9, 1976]
Sub pa it C—Monitoring and
Analytical Requirements
§141.21 Coliform sampling.
(a) Routine monitoring. (1) Public water systems
must collect total coliform samples at sites which
are representative of water throughout the distribu-
tion system according to a written sample siting
plan. These plans are subject to State review and
revision.
(2) The monitoring frequency for total coliforms
for community water systems is based on the pop-
ulation served by the system, as follows:
TOTAL COLIFORM MONITORING FREQUENCY FOR
COMMUNITY WATER SYSTEMS
Population served
25 to 1,0001
1,001 to 2,500
2 501 to 3 300
3 301 to 4 1 00
4101 to 4 900
4,901 to 5,800
5,801 to 6,700
6,701 to 7,600
7 601 to 8 500
8 501 to 1 2 900
1 2 901 to 1 7 200
17,201 to 21, 500
21,501 to 25,000
25,001 to 33,000
33 001 to 41 000
41 001 to 50 000
50 001 to 59 000
59,001 to 70,000
70,001 to 83,000
83,001 to 96,000
96 001 to 1 30 000
130,001 to 220,000
220 001 to 320 000
320 001 to 450 000
450,001 to 600,000
Minimum
number
of sam-
ples per
month
1
2
3
4
5
6
7
8
9
10
15
20
25
30
40
50
60
70
80
90
100
120
150
180
210
Population served
600 001 to 780 000
780 001 to 970 000
970,001 to 1,230,000
1 230 001 to 1 520 000
1,520,001 to 1,850,000
1,850,001 to 2,270,000
2,270,001 to 3,020,000
3 020 001 to 3 960 000
3,960,001 or more
Minimum
number
of sam-
ples per
month
240
270
300
330
360
390
420
450
480
includes public water systems which have at least 15
service connections, but serve fewer than 25 persons.
If a community water system serving 25 to 1,000
persons has no history of total coliform contami-
nation in its current configuration and a sanitary
survey conducted in the past five years shows that
the system is supplied solely by a protected
groundwater source and is free of sanitary defects,
the State may reduce the monitoring frequency
specified above, except that in no case may the
State reduce the monitoring frequency to less than
one sample per quarter. The State must approve
the reduced monitoring frequency in writing.
(3) The monitoring frequency for total coliforms
for non-community water systems is as follows:
(i) A non-community water system using only
ground water (except ground water under the di-
rect influence of surface water, as defined in
§ 141.2) and serving 1,000 persons or fewer must
monitor each calendar quarter that the system pro-
vides water to the public, except that the State
may reduce this monitoring frequency, in writing,
if a sanitary survey shows that the system is free
of sanitary defects. Beginning June 29, 1994, the
State cannot reduce the monitoring frequency for
a non-community water system using only ground
water (except ground water under the direct influ-
ence of surface water, as defined in § 141.2) and
serving 1,000 persons or fewer to less than once/
year.
(ii) A non-community water system using only
ground water (except ground water under the di-
rect influence of surface water, as defined in
§ 141.2) and serving more than 1,000 persons dur-
ing any month must monitor at the same fre-
quency as a like-sized community water system, as
specified in paragraph (a)(2) of this section, except
the State may reduce this monitoring frequency, in
writing, for any month the system serves 1,000
persons or fewer. The State cannot reduce the
monitoring frequency to less than once/year. For
systems using ground water under the direct influ-
ence of surface water, paragraph (a)(3)(iv) of this
section applies.
-------
§141.21
(iii) A non-community water system using sur-
face water, in total or in part, must monitor at the
same frequency as a like-sized community water
system, as specified in paragraph (a)(2) of this
section, regardless of the number of persons it
serves.
(iv) A non-community water system using
ground water under the direct influence of surface
water, as defined in §141.2, must monitor at the
same frequency as a like-sized community water
system, as specified in paragraph (a)(2) of this
section. The system must begin monitoring at this
frequency beginning six months after the State de-
termines that the ground water is under the direct
influence of surface water.
(4) The public water system must collect sam-
ples at regular time intervals throughout the
month, except that a system which uses only
ground water (except ground water under the di-
rect influence of surface water, as defined in
§ 141.2), and serves 4,900 persons or fewer, may
collect all required samples on a single day if they
are taken from different sites.
(5) A public water system that uses surface
water or ground water under the direct influence
of surface water, as defined in § 141.2, and does
not practice filtration in compliance with Subpart
H must collect at least one sample near the first
service connection each day the turbidity level of
the source water, measured as specified in
§ 141.74(b)(2), exceeds 1 NTU. This sample must
be analyzed for the presence of total coliforms.
When one or more turbidity measurements in any
day exceed 1 NTU, the system must collect this
coliform sample within 24 hours of the first
exceedance, unless the State determines that the
system, for logistical reasons outside the system's
control, cannot have the sample analyzed within
30 hours of collection. Sample results from this
coliform monitoring must be included in determin-
ing compliance with the MCL for total coliforms
in §141.63.
(6) Special purpose samples, such as those taken
to determine whether disinfection practices are
sufficient following pipe placement, replacement,
or repair, shall not be used to determine compli-
ance with the MCL for total coliforms in § 141.63.
Repeat samples taken pursuant to paragraph (b) of
this section are not considered special purpose
samples, and must be used to determine compli-
ance with the MCL for total coliforms in § 141.63.
(b) Repeat monitoring. (1) If a routine sample
is total coliform-positive, the public water system
must collect a set of repeat samples within 24
hours of being notified of the positive result. A
system which collects more than one routine sam-
ple/month must collect no fewer than three repeat
samples for each total coliform-positive sample
found. A system which collects one routine sam-
ple/month or fewer must collect no fewer than
four repeat samples for each total coliform-posi-
tive sample found. The State may extend the 24-
hour limit on a case-by-case basis if the system
has a logistical problem in collecting the repeat
samples within 24 hours that is beyond its control.
In the case of an extension, the State must specify
how much time the system has to collect the re-
peat samples.
(2) The system must collect at least one repeat
sample from the sampling tap where the original
total coliform-positive sample was taken, and at
least one repeat sample at a tap within five service
connections upstream and at least one repeat sam-
ple at a tap within five service connections down-
stream of the original sampling site. If a total coli-
form-positive sample is at the end of the distribu-
tion system, or one away from the end of the dis-
tribution system, the State may waive the require-
ment to collect at least one repeat sample up-
stream or downstream of the original sampling
site.
(3) The system must collect all repeat samples
on the same day, except that the State may allow
a system with a single service connection to col-
lect the required set of repeat samples over a four-
day period or to collect a larger volume repeat
sample(s) in one or more sample containers of any
size, as long as the total volume collected is at
least 400 ml (300 ml for systems which collect
more than one routine sample/month).
(4) If one or more repeat samples in the set is
total coliform-positive, the public water system
must collect an additional set of repeat samples in
the manner specified in paragraphs (b) (l)-(3) of
this section. The additional samples must be col-
lected within 24 hours of being notified of the
positive result, unless the State extends the limit as
provided in paragraph (b)(l) of this section. The
system must repeat this process until either total
coliforms are not detected in one complete set of
repeat samples or the system determines that the
MCL for total coliforms in § 141.63 has been ex-
ceeded and notifies the State.
(5) If a system collecting fewer than five rou-
tine samples/month has one or more total coli-
form-positive samples and the State does not in-
validate the sample(s) under paragraph (c) of this
section, it must collect at least five routine sam-
ples during the next month the system provides
water to the public, except that the State may
waive this requirement if the conditions of para-
graph (b)(5) (i) or (ii) of this section are met. The
State cannot waive the requirement for a system to
collect repeat samples in paragraphs (b) (l)-(4) of
this section.
(i) The State may waive the requirement to col-
lect five routine samples the next month the sys-
tem provides water to the public if the State, or
-------
§141.21
an agent approved by the State, performs a site
visit before the end of the next month the system
provides water to the public. Although a sanitary
survey need not be performed, the site visit must
be sufficiently detailed to allow the State to deter-
mine whether additional monitoring and/or any
corrective action is needed. The State cannot ap-
prove an employee of the system to perform this
site visit, even if the employee is an agent ap-
proved by the State to perform sanitary surveys.
(ii) The State may waive the requirement to col-
lect five routine samples the next month the sys-
tem provides water to the public if the State has
determined why the sample was total coliform-
positive and establishes that the system has cor-
rected the problem or will correct the problem be-
fore the end of the next month the system serves
water to the public. In this case, the State must
document this decision to waive the following
month's additional monitoring requirement in writ-
ing, have it approved and signed by the supervisor
of the State official who recommends such a deci-
sion, and make this document available to the
EPA and public. The written documentation must
describe the specific cause of the total coliform-
positive sample and what action the system has
taken and/or will take to correct this problem. The
State cannot waive the requirement to collect five
routine samples the next month the system pro-
vides water to the public solely on the grounds
that all repeat samples are total coliform-negative.
Under this paragraph, a system must still take at
least one routine sample before the end of the next
month it serves water to the public and use it to
determine compliance with the MCL for total coli-
forms in § 141.63, unless the State has determined
that the system has corrected the contamination
problem before the system took the set of repeat
samples required in paragraphs (b) (l)-(4) of this
section, and all repeat samples were total coliform-
negative.
(6) After a system collects a routine sample and
before it learns the results of the analysis of that
sample, if it collects another routine sample(s)
from within five adjacent service connections of
the initial sample, and the initial sample, after
analysis, is found to contain total coliforms, then
the system may count the subsequent sample(s) as
a repeat sample instead of as a routine sample.
(7) Results of all routine and repeat samples not
invalidated by the State must be included in deter-
mining compliance with the MCL for total coli-
forms in § 141.63.
(c) Invalidation of total coliform samples. A
total coliform-positive sample invalidated under
this paragraph (c) does not count towards meeting
the minimum monitoring requirements of this sec-
tion. (1) The State may invalidate a total coliform-
positive sample only if the conditions of paragraph
(c)(l) (i), (ii), or (iii) of this section are met.
(i) The laboratory establishes that improper
sample analysis caused the total coliform-positive
result.
(ii) The State, on the basis of the results of re-
peat samples collected as required by paragraphs
(b) (1) through (4) of this section, determines that
the total coliform-positive sample resulted from a
domestic or other non-distribution system plumb-
ing problem. The State cannot invalidate a sample
on the basis of repeat sample results unless all re-
peat sample(s) collected at the same tap as the
original total coliform-positive sample are also
total coliform-positive, and all repeat samples col-
lected within five service connections of the origi-
nal tap are total coliform-negative (e.g., a State
cannot invalidate a total coliform-positive sample
on the basis of repeat samples if all the repeat
samples are total coliform-negative, or if the pub-
lic water system has only one service connection).
(iii) The State has substantial grounds to believe
that a total coliform-positive result is due to a cir-
cumstance or condition which does not reflect
water quality in the distribution system. In this
case, the system must still collect all repeat sam-
ples required under paragraphs (b) (l)-(4) of this
section, and use them to determine compliance
with the MCL for total coliforms in § 141.63. To
invalidate a total coliform-positive sample under
this paragraph, the decision with the rationale for
the decision must be documented in writing, and
approved and signed by the supervisor of the State
official who recommended the decision. The State
must make this document available to EPA and
the public. The written documentation must state
the specific cause of the total coliform-positive
sample, and what action the system has taken, or
will take, to correct this problem. The State may
not invalidate a total coliform-positive sample
solely on the grounds that all repeat samples are
total coliform-negative.
(2) A laboratory must invalidate a total coliform
sample (unless total coliforms are detected) if the
sample produces a turbid culture in the absence of
gas production using an analytical method where
gas formation is examined (e.g., the Multiple-Tube
Fermentation Technique), produces a turbid culture
in the absence of an acid reaction in the Presence-
Absence (P-A) Coliform Test, or exhibits con-
fluent growth or produces colonies too numerous
to count with an analytical method using a mem-
brane filter (e.g., Membrane Filter Technique). If
a laboratory invalidates a sample because of such
interference, the system must collect another sam-
ple from the same location as the original sample
within 24 hours of being notified of the inter-
ference problem, and have it analyzed for the pres-
ence of total coliforms. The system must continue
10
-------
§141.21
to re-sample within 24 hours and have the samples
analyzed until it obtains a valid result. The State
may waive the 24-hour time limit on a case-by-
case basis.
(d) Sanitary surveys. (l)(i) Public water systems
which do not collect five or more routine samples/
month must undergo an initial sanitary survey by
June 29, 1994, for community public water sys-
tems and June 29, 1999, for non-community water
systems. Thereafter, systems must undergo another
sanitary survey every five years, except that non-
community water systems using only protected
and disinfected ground water, as defined by the
State, must undergo subsequent sanitary surveys at
least every ten years after the initial sanitary sur-
vey. The State must review the results of each
sanitary survey to determine whether the existing
monitoring frequency is adequate and what addi-
tional measures, if any, the system needs to under-
take to improve drinking water quality.
(ii) In conducting a sanitary survey of a system
using ground water in a State having an EPA-ap-
proved wellhead protection program under section
1428 of the Safe Drinking Water Act, information
on sources of contamination within the delineated
wellhead protection area that was collected in the
course of developing and implementing the pro-
gram should be considered instead of collecting
new information, if the information was collected
since the last time the system was subject to a
sanitary survey.
(2) Sanitary surveys must be performed by the
State or an agent approved by the State. The sys-
tem is responsible for ensuring the survey takes
place.
(e) Fecal coliforms/Escherichia coli (E. coli)
testing. (1) If any routine or repeat sample is total
coliform-positive, the system must analyze that
total coliform-positive culture medium to deter-
mine if fecal coliforms are present, except that the
system may test for E. coli in lieu of fecal coli-
forms. If fecal coliforms or E. coli are present, the
system must notify the State by the end of the day
when the system is notified of the test result, un-
less the system is notified of the result after the
State office is closed, in which case the system
must notify the State before the end of the next
business day.
(2) The State has the discretion to allow a pub-
lic water system, on a case-by-case basis, to forgo
fecal coliform or E. coli testing on a total coli-
form-positive sample if that system assumes that
the total coliform-positive sample is fecal coli-
form-positive or E. co/!-positive. Accordingly, the
system must notify the State as specified in para-
graph (e)(l) of this section and the provisions of
§ 141.63(b) apply.
(f) Analytical methodology. (1) The standard
sample volume required for total coliform analysis,
regardless of analytical method used, is 100 ml.
(2) Public water systems need only determine
the presence or absence of total coliforms; a deter-
mination of total coliform density is not required.
(3) Public water systems must conduct total
coliform analyses in accordance with one of the
analytical methods in the following table. These
methods are contained in the 18th edition of
Standard Methods for the Examination of Water
and Wastewater, 1992, American Public Health
Association, 1015 Fifteenth Street NW., Washing-
ton, DC 20005. A description of the Colisure Test
may be obtained from the Millipore Corporation,
Technical Services Department, 80 Ashby Road,
Bedford, MA 01730. The toll-free phone number
is (800) 645-5476.
Organism
Total Con-
forms1.
Methodology
Total Coliform Fermenta-
tion Technique2-3-4.
Total Coliform Membrane
Filter Technique.
Presence-Absence (P-A)
Coliform Test4-5.
ONPG-MUG Tes^
Colisure Test7.
Citation
9221 A, B.
9222A, B, C.
9221 D.
9223.
1 The time from sample collection to initiation of analysis
may not exceed 30 hours. Systems are encouraged but not
required to hold samples below 10°C during transit.
2 Lactose broth, as commercially available, may be used in
lieu of laurel tryptose broth, if the system conducts at least 25
parallel tests between this medium and lauryl tryptose broth
using the water normally tested, and this comparison dem-
onstrates that the false-positive rate and false-negative rate
for total coliforms, using lactose broth, is less than 10 percent.
3 If inverted tubes are used to detect gas production, the
media should cover these tubes at least one-half to two-thirds
after the sample is added.
4 No requirement exists to run the completed phase on 10
percent of all total coliform-positive confirmed tubes.
5 Six-times formulation strength may be used if the medium
is filter-sterilized rather than autoclaved.
6The ONPG-MUG Test is also known as the Autoanalysis
Colilert System.
7The Colisure Test must be incubated for 28 hours before
examining the results. If an examination of the results at 28
hours is not convenient, then results may be examined at any
time between 28 hours and 48 hours.
(4) [Reserved]
(5) Public water systems must conduct fecal
coliform analysis in accordance with the following
procedure. When the MTF Technique or Presence-
Absence (PA) Coliform Test is used to test for
total coliforms, shake the lactose-positive pre-
sumptive tube or P-A vigorously and transfer the
growth with a sterile 3-mm loop or sterile applica-
tor stick into brilliant green lactose bile broth and
EC medium to determine the presence of total and
fecal coliforms, respectively. For EPA-approved
analytical methods which use a membrane filter,
transfer the total coliform-positive culture by one
of the following methods: remove the membrane
containing the total coliform colonies from the
substrate with a sterile forceps and carefully curl
11
-------
§141.21
and insert the membrane into a tube of EC me-
dium (the laboratory may first remove a small por-
tion of selected colonies for verification), swab the
entire membrane filter surface with a sterile cotton
swab and transfer the inoculum to EC medium (do
not leave the cotton swab in the EC medium), or
inoculate individual total coliform-positive colo-
nies into EC Medium. Gently shake the inoculated
tubes of EC medium to insure adequate mixing
and incubate in a waterbath at 44.5 ± 0.2 °C for
24 ± 2 hours. Gas production of any amount in the
inner fermentation tube of the EC medium indi-
cates a positive fecal coliform test. The prepara-
tion of EC medium is described in the 18th edition
of Standard Methods for the Examination of Water
and Wastewater, 1992, Method 9221E—p. 9-52,
paragraph la. Public water systems need only de-
termine the presence or absence of fecal coliforms;
a determination of fecal coliform density is not re-
quired.
(6) Public water systems must conduct analysis
of Escherichia coli in accordance with one of the
following analytical methods:
(i) EC medium supplemented with 50 |lg/ml of
4-methylumbelliferyl-beta-D-glucuronide (MUG)
(final concentration). EC medium is described in
the 18th edition of Standard Methods for the Ex-
amination of Water and Wastewater, 1992, Meth-
od 9221E—p. 9-52, paragraph la. MUG may be
added to EC medium before autoclaving. EC me-
dium supplemented with 50 |lg/ml of MUG is
commercially available. At least 10 ml of EC me-
dium supplemented with MUG must be used. The
inner inverted fermentation tube may be omitted.
The procedure for transferring a total coliform-
positive culture to EC medium supplemented with
MUG shall be as specified in paragraph (f)(5) of
this section for transferring a total coliform-posi-
tive culture to EC medium. Observe fluorescence
with an ultraviolet light (366 nm) in the dark after
incubating tube at 44.5 ± 0.2 °C for 24 ± 2 hours;
or
(ii) Nutrient agar supplemented with 100 |lg/ml
4-methylumbelliferyl-beta-D-glucuronide (MUG)
(final concentration). Nutrient Agar is described in
the 18th edition of Standard Methods for the Ex-
amination of Water and Wastewater, 1992, p. 9—
47 to 9-48. This test is used to determine if a total
coliform-positive sample, as determined by the
Membrane Filter Technique or any other method
in which a membrane filter is used, contains E.
coli. Transfer the membrane filter containing a
total coliform colony(ies) to nutrient agar supple-
mented with 100 |lg/ml (final concentration) of
MUG. After incubating the agar plate at 35 °C for
4 hours, observe the colony(ies) under ultraviolet
light (366 nm) in the dark for fluorescence. If flu-
orescence is visible, E. coli are present.
(iii) Minimal Medium ONPG-MUG (MMO-
MUG) Test, as set forth in the article "National
Field Evaluation of a Defined Substrate Method
for the Simultaneous Detection of Total Coliforms
and Escherichia coli from Drinking Water: Com-
parison with Presence-Absence Techniques"
(Edberg et al.), Applied and Environmental Micro-
biology, Volume 55, pp. 1003-1008, April 1989.
(Note: The Autoanalysis Colilert System is an
MMO-MUG test). If the MMO-MUG test is total
coliform-positive after a 24-hour incubation, test
the medium for fluorescence with a 366-nm ultra-
violet light (preferably with a 6-watt lamp) in the
dark. If fluorescence is observed, the sample is E.
co/!-positive. If fluorescence is questionable (can-
not be definitively read) after 24 hours incubation,
incubate the culture for an additional four hours
(but not to exceed 28 hours total), and again test
the medium for fluorescence. The MMO-MUG
Test with hepes buffer in lieu of phosphate buffer
is the only approved formulation for the detection
of E. coli.
(iv) The Colisure Test. A description of the
Colisure Test may be obtained from the Millipore
Corporation, Technical Services Department, 80
Ashby Road, Bedford, MA 01730.
(7) As an option to paragraph (f)(6)(iii) of this
section, a system with a total coliform-positive,
MUG-negative, MMO-MUG test may further ana-
lyze the culture for the presence of E. coli by
transferring a 0.1 ml, 28-hour MMO-MUG culture
to EC Medium + MUG with a pipet. The formula-
tion and incubation conditions of EC Medium +
MUG, and observation of the results are described
in paragraph (f)(6)(i) of this section.
(8) The following materials are incorporated by
reference in this section with the approval of the
Director of the Federal Register in accordance
with 5 U.S.C. 552(a) and 1 CFR part 51. Copies
of the analytical methods cited in Standard Meth-
ods for the Examination of Water and Wastewater
may be obtained from the American Public Health
Association et al.; 1015 Fifteenth Street, NW.;
Washington, DC 20005. Copies of the methods set
forth in Microbiological Methods for Monitoring
the Environment, Water and Wastes may be ob-
tained from ORD Publications, U.S. EPA, 26 W.
Martin Luther King Drive, Cincinnati, Ohio
45268. Copies of the MMO-MUG Test as set
forth in the article "National Field Evaluation of
a Defined Substrate Method for the Simultaneous
Enumeration of Total Coliforms and Escherichia
coli from Drinking Water: Comparison with the
Standard Multiple Tube Fermentation Method"
(Edberg et al.) may be obtained from the Amer-
ican Water Works Association Research Founda-
tion, 6666 West Quincy Avenue, Denver, CO
80235. A description of the Colisure Test may be
12
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§141.23
obtained from the Millipore Corp., Technical Serv-
ices Department, 80 Ashby Road, Bedford, MA
01730. Copies may be inspected at EPA's Drink-
ing Water Docket; 401 M Street, SW.; Washing-
ton, DC 20460, or at the Office of the Federal
Register; 800 North Capitol Street, NW., suite
700, Washington, DC.
(g) Response to violation. (1) A public water
system which has exceeded the MCL for total
coliforms in § 141.63 must report the violation to
the State no later than the end of the next business
day after it learns of the violation, and notify the
public in accordance with § 141.32.
(2) A public water system which has failed to
comply with a coliform monitoring requirement,
including the sanitary survey requirement, must re-
port the monitoring violation to the State within
ten days after the system discovers the violation,
and notify the public in accordance with § 141.32.
[54 FR 27562, June 29, 1989, as amended at 54 FR
30001, July 17, 1989; 55 FR 25064, June 19, 1990; 56
FR 642, Jan. 8, 1991; 57 FR 1852, Jan. 15, 1992; 57 FR
24747, June 10, 1992; 59 FR 62466, Dec. 5, 1994; 60 FR
34085, June 29, 1995]
§141.22 Turbidity sampling and ana-
lytical requirements.
The requirements in this section apply to
unfiltered systems until December 30, 1991, unless
the State has determined prior to that date, in writ-
ing pursuant to section 1412(b)(7)(iii), that filtra-
tion is required. The requirements in this section
apply to filtered systems until June 29, 1993. The
requirements in this section apply to unfiltered
systems that the State has determined, in writing
pursuant to section 1412(b)(7)(C)(iii), must install
filtration, until June 29, 1993, or until filtration is
installed, whichever is later.
(a) Samples shall be taken by suppliers of water
for both community and non-community water
systems at a representative entry point(s) to the
water distribution system at least once per day, for
the purposes of making turbidity measurements to
determine compliance with §141.13. If the State
determines that a reduced sampling frequency in a
non-community will not pose a risk to public
health, it can reduce the required sampling fre-
quency. The option of reducing the turbidity fre-
quency shall be permitted only in those public
water systems that practice disinfection and which
maintain an active residual disinfectant in the dis-
tribution system, and in those cases where the
State has indicated in writing that no unreasonable
risk to health existed under the circumstances of
this option. Turbidity measurements shall be made
as directed in § 141.74(a)(l).
(b) If the result of a turbidity analysis indicates
that the maximum allowable limit has been ex-
ceeded, the sampling and measurement shall be
confirmed by resampling as soon as practicable
and preferably within one hour. If the repeat sam-
ple confirms that the maximum allowable limit has
been exceeded, the supplier of water shall report
to the State within 48 hours. The repeat sample
shall be the sample used for the purpose of cal-
culating the monthly average. If the monthly aver-
age of the daily samples exceeds the maximum al-
lowable limit, or if the average of two samples
taken on consecutive days exceeds 5 TU, the sup-
plier of water shall report to the State and notify
the public as directed in §§ 141.31 and 141.32.
(c) Sampling for non-community water systems
shall begin within two years after the effective
date of this part.
(d) The requirements of this § 141.22 shall
apply only to public water systems which use
water obtained in whole or in part from surface
sources.
(e) The State has the authority to determine
compliance or initiate enforcement action based
upon analytical results or other information com-
piled by their sanctioned representatives and agen-
cies.
[40 FR 59570, Dec. 24, 1975, as amended at 45 FR
57344, Aug. 27, 1980; 47 FR 8998, Mar. 3, 1982; 47 FR
10998, Mar. 12, 1982; 54 FR 27527, June 29, 1989; 59
FR 62466, Dec. 5, 1994]
§141.23 Inorganic chemical sampling
and analytical requirements.
Community water systems shall conduct mon-
itoring to determine compliance with the maxi-
mum contaminant levels specified in §141.62 in
accordance with this section. Non-transient, non-
community water systems shall conduct monitor-
ing to determine compliance with the maximum
contaminant levels specified in § 141.62 in accord-
ance with this section. Transient, non-community
water systems shall conduct monitoring to deter-
mine compliance with the nitrate and nitrite maxi-
mum contaminant levels in §§141.11 and 141.62
(as appropriate) in accordance with this section.
(a) Monitoring shall be conducted as follows:
(1) Groundwater systems shall take a minimum
of one sample at every entry point to the distribu-
tion system which is representative of each well
after treatment (hereafter called a sampling point)
beginning in the initial compliance period. The
system shall take each sample at the same sam-
pling point unless conditions make another sam-
pling point more representative of each source or
treatment plant.
(2) Surface water systems shall take a minimum
of one sample at every entry point to the distribu-
tion system after any application of treatment or in
13
-------
§141.23
the distribution system at a point which is rep-
resentative of each source after treatment (here-
after called a sampling point) beginning in the ini-
tial compliance period. The system shall take each
sample at the same sampling point unless condi-
tions make another sampling point more represent-
ative of each source or treatment plant.
NOTE: For purposes of this paragraph, surface water
systems include systems with a combination of surface
and ground sources.
(3) If a system draws water from more than one
source and the sources are combined before dis-
tribution, the system must sample at an entry point
to the distribution system during periods of normal
operating conditions (i.e., when water is represent-
ative of all sources being used).
(4) The State may reduce the total number of
samples which must be analyzed by allowing the
use of compositing. Composite samples from a
maximum of five samples are allowed, provided
that the detection limit of the method used for
analysis is less than one-fifth of the MCL.
Compositing of samples must be done in the lab-
oratory.
(i) If the concentration in the composite sample
is greater than or equal to one-fifth of the MCL
of any inorganic chemical, then a follow-up sam-
ple must be taken within 14 days at each sampling
point included in the composite. These samples
must be analyzed for the contaminants which ex-
ceeded one-fifth of the MCL in the composite
sample. Detection limits for each analytical meth-
od and MCLs for each inorganic contaminant are
the following:
DETECTION LIMITS FOR INORGANIC CONTAMINANTS
Contaminant
Antimony
Asbestos
Barium
Beryllium
Cadmium
Chromium
Cyanide
Mercury
Nickel
Nitrate
Nitrite
Selenium
Thallium
MCL (mg/l)
0.006
7MFL' ....
2
0.004
0.005
0.1
0.2
0.002
xl
1 0 (as N)
1 (as N)
0.05
0002
Methodology
Atomic Absorption; Furnace
Atomic Absorption; Platform
ICP-Mass Spectrometry
Hydride- Atomic Absorption
Transmission Electron Microscopy
Atomic Absorption; furnace technique
Atomic Absorption; direct aspiration
Inductively Coupled Plasma
Atomic Absorption; Furnace
Atomic Absorption; Platform
Inductively Coupled Plasma2
ICP-Mass Spectrometry
Atomic Absorption; furnace technique
Inductively Coupled Plasma
Atomic Absorption; furnace technique
Inductively Coupled Plasma
Distillation, Spectrophotometric 3
Distillation, Automated, Spectrophotometric3
Distillation, Selective Electrode3
Distillation, Amenable, Spectrophotometric4
Manual Cold Vapor Technique
Automated Cold Vapor Technique
Atomic Absorption; Furnace
Atomic Absorption; Platform
Inductively Coupled Plasma2
ICP-Mass Spectrometry
Manual Cadmium Reduction
Automated Hydrazine Reduction
Automated Cadmium Reduction
Ion Selective Electrode
Ion Chromatography
Spectrophotometric
Automated Cadmium Reduction
Manual Cadmium Reduction
Ion Chromatography
Atomic Absorption; furnace
Atomic Absorption' gaseous hydride
Atomic Absorption' Furnace
Atomic Absorption; Platform
ICP-Mass Spectrometry
Detection limit
(mg/l)
0.003
0.0008 =
0.0004
0.001
0.01 MFL
0.002
0.1
0.002 (0.001)
0.0002
0.00002 =
0.0003
0.0003
0.0001
0.001
0.001
0.007 (0.001)
0.02
0.005
0.05
0.02
0.0002
0.0002
0.001
0.00065
0.005
0.0005
0.01
0.01
0.05
1
0.01
0.01
0.05
0.01
0.004
0.002
0.002
0.001
0.00075
0.0003
1 MFL = million fibers per liter >10 |im.
2 Using a 2X preconcentration step as noted in Method 200.7. Lower MDLs may be achieved when using a 4X
preconcentration.
3 Screening method for total cyanides.
4 Measures "free" cyanides.
5 Lower MDLs are reported using stabilized temperature graphite furnace atomic absorption.
14
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§141.23
(ii) If the population served by the system is
>3,300 persons, then compositing may only be
permitted by the State at sampling points within a
single system. In systems serving <3,300 persons,
the State may permit compositing among different
systems provided the 5-sample limit is maintained.
(iii) If duplicates of the original sample taken
from each sampling point used in the composite
are available, the system may use these instead of
resampling. The duplicates must be analyzed and
the results reported to the State within 14 days of
collection.
(5) The frequency of monitoring for asbestos
shall be in accordance with paragraph (b) of this
section: the frequency of monitoring for antimony,
barium, beryllium, cadmium, chromium, cyanide,
fluoride, mercury, nickel, selenium and thallium
shall be in accordance with paragraph (c) of this
section; the frequency of monitoring for nitrate
shall be in accordance with paragraph (d) of this
section; and the frequency of monitoring for nitrite
shall be in accordance with paragraph (e) of this
section.
(b) The frequency of monitoring conducted to
determine compliance with the maximum contami-
nant level for asbestos specified in § 141.62(b)
shall be conducted as follows:
(1) Each community and non-transient, non-
community water system is required to monitor for
asbestos during the first three-year compliance pe-
riod of each nine-year compliance cycle beginning
in the compliance period starting January 1, 1993.
(2) If the system believes it is not vulnerable to
either asbestos contamination in its source water
or due to corrosion of asbestos-cement pipe, or
both, it may apply to the State for a waiver of the
monitoring requirement in paragraph (b)(l) of this
section. If the State grants the waiver, the system
is not required to monitor.
(3) The State may grant a waiver based on a
consideration of the following factors:
(i) Potential asbestos contamination of the water
source, and
(ii) The use of asbestos-cement pipe for finished
water distribution and the corrosive nature of the
water.
(4) A waiver remains in effect until the comple-
tion of the three-year compliance period. Systems
not receiving a waiver must monitor in accordance
with the provisions of paragraph (b)(l) of this sec-
tion.
(5) A system vulnerable to asbestos contamina-
tion due solely to corrosion of asbestos-cement
pipe shall take one sample at a tap served by as-
bestos-cement pipe and under conditions where as-
bestos contamination is most likely to occur.
(6) A system vulnerable to asbestos contamina-
tion due solely to source water shall monitor in
accordance with the provision of paragraph (a) of
this section.
(7) A system vulnerable to asbestos contamina-
tion due both to its source water supply and corro-
sion of asbestos-cement pipe shall take one sample
at a tap served by asbestos-cement pipe and under
conditions where asbestos contamination is most
likely to occur.
(8) A system which exceeds the maximum con-
taminant levels as determined in § 141.23(i) of this
section shall monitor quarterly beginning in the
next quarter after the violation occurred.
(9) The State may decrease the quarterly mon-
itoring requirement to the frequency specified in
paragraph (b)(l) of this section provided the State
has determined that the system is reliably and con-
sistently below the maximum contaminant level. In
no case can a State make this determination unless
a groundwater system takes a minimum of two
quarterly samples and a surface (or combined sur-
face/ground) water system takes a minimum of
four quarterly samples.
(10) If monitoring data collected after January
1, 1990 are generally consistent with the require-
ments of § 141.23(b), then the State may allow
systems to use that data to satisfy the monitoring
requirement for the initial compliance period be-
ginning January 1, 1993.
(c) The frequency of monitoring conducted to
determine compliance with the maximum contami-
nant levels in §141.62 for antimony, barium, be-
ryllium, cadmium, chromium, cyanide, fluoride,
mercury, nickel, selenium and thallium shall be as
follows:
(1) Groundwater systems shall take one sample
at each sampling point during each compliance pe-
riod. Surface water systems (or combined surface/
ground) shall take one sample annually at each
sampling point.
(2) The system may apply to the State for a
waiver from the monitoring frequencies specified
in paragraph (c)(l) of this section. States may
grant a public water system a waiver for monitor-
ing of cyanide, provided that the State determines
that the system is not vulnerable due to lack of
any industrial source of cyanide.
(3) A condition of the waiver shall require that
a system shall take a minimum of one sample
while the waiver is effective. The term during
which the waiver is effective shall not exceed one
compliance cycle (i.e., nine years).
(4) The State may grant a waiver provided sur-
face water systems have monitored annually for at
least three years and groundwater systems have
conducted a minimum of three rounds of monitor-
ing. (At least one sample shall have been taken
since January 1, 1990). Both surface and ground-
water systems shall demonstrate that all previous
analytical results were less than the maximum
15
-------
§141.23
contaminant level. Systems that use a new water
source are not eligible for a waiver until three
rounds of monitoring from the new source have
been completed.
(5) In determining the appropriate reduced mon-
itoring frequency, the State shall consider:
(i) Reported concentrations from all previous
monitoring;
(ii) The degree of variation in reported con-
centrations; and
(iii) Other factors which may affect contaminant
concentrations such as changes in groundwater
pumping rates, changes in the system's configura-
tion, changes in the system's operating procedures,
or changes in stream flows or characteristics.
(6) A decision by the State to grant a waiver
shall be made in writing and shall set forth the
basis for the determination. The determination may
be initiated by the State or upon an application by
the public water system. The public water system
shall specify the basis for its request. The State
shall review and, where appropriate, revise its de-
termination of the appropriate monitoring fre-
quency when the system submits new monitoring
data or when other data relevant to the system's
appropriate monitoring frequency become avail-
able.
(7) Systems which exceed the maximum con-
taminant levels as calculated in § 141.23(i) of this
section shall monitor quarterly beginning in the
next quarter after the violation occurred.
(8) The State may decrease the quarterly mon-
itoring requirement to the frequencies specified in
paragraphs (c)(l) and (c)(2) of this section pro-
vided it has determined that the system is reliably
and consistently below the maximum contaminant
level. In no case can a State make this determina-
tion unless a groundwater system takes a mini-
mum of two quarterly samples and a surface water
system takes a minimum of four quarterly sam-
ples.
(d) All public water systems (community; non-
transient, non-community; and transient, non-com-
munity systems) shall monitor to determine com-
pliance with the maximum contaminant level for
nitrate in § 141.62.
(1) Community and non-transient, non-commu-
nity water systems served by groundwater systems
shall monitor annually beginning January 1, 1993;
systems served by surface water shall monitor
quarterly beginning January 1, 1993.
(2) For community and non-transient, non-com-
munity water systems, the repeat monitoring fre-
quency for groundwater systems shall be quarterly
for at least one year following any one sample in
which the concentration is >50 percent of the
MCL. The State may allow a groundwater system
to reduce the sampling frequency to annually after
four consecutive quarterly samples are reliably and
consistently less than the MCL.
(3) For community and non-transient, non-com-
munity water systems, the State may allow a sur-
face water system to reduce the sampling fre-
quency to annually if all analytical results from
four consecutive quarters are <50 percent of the
MCL. A surface water system shall return to quar-
terly monitoring if any one sample is >50 percent
of the MCL.
(4) Each transient non-community water system
shall monitor annually beginning January 1, 1993.
(5) After the initial round of quarterly sampling
is completed, each community and non-transient
non-community system which is monitoring annu-
ally shall take subsequent samples during the
quarter(s) which previously resulted in the highest
analytical result.
(e) All public water systems (community; non-
transient, non-community; and transient, non-com-
munity systems) shall monitor to determine com-
pliance with the maximum contaminant level for
nitrite in §141.62(b).
(1) All public water systems shall take one sam-
ple at each sampling point in the compliance pe-
riod beginning January 1, 1993 and ending De-
cember 31, 1995.
(2) After the initial sample, systems where an
analytical result for nitrite is <50 percent of the
MCL shall monitor at the frequency specified by
the State.
(3) For community, non-transient, non-commu-
nity, and transient non-community water systems,
the repeat monitoring frequency for any water sys-
tem shall be quarterly for at least one year follow-
ing any one sample in which the concentration is
>50 percent of the MCL. The State may allow a
system to reduce the sampling frequency to annu-
ally after determining the system is reliably and
consistently less than the MCL.
(4) Systems which are monitoring annually shall
take each subsequent sample during the quarter(s)
which previously resulted in the highest analytical
result.
(f) Confirmation samples:
(1) Where the results of sampling for asbestos,
antimony, barium, beryllium, cadmium, chromium,
cyanide, fluoride, mercury, nickel, selenium or
thallium indicate an exceedance of the maximum
contaminant level, the State may require that one
additional sample be collected as soon as possible
after the initial sample was taken (but not to ex-
ceed two weeks) at the same sampling point.
(2) Where nitrate or nitrite sampling results in-
dicate an exceedance of the maximum contaminant
level, the system shall take a confirmation sample
within 24 hours of the system's receipt of notifica-
tion of the analytical results of the first sample.
16
-------
§141.23
Systems unable to comply with the 24-hour sam-
pling requirement must immediately notify the
consumers served by the area served by the public
water system in accordance with §141.32. Sys-
tems exercising this option must take and analyze
a confirmation sample within two weeks of notifi-
cation of the analytical results of the first sample.
(3) If a State-required confirmation sample is
taken for any contaminant, then the results of the
initial and confirmation sample shall be averaged.
The resulting average shall be used to determine
the system's compliance in accordance with para-
graph (i) of this section. States have the discretion
to delete results of obvious sampling errors.
(g) The State may require more frequent mon-
itoring than specified in paragraphs (b), (c), (d)
and (e) of this section or may require confirmation
samples for positive and negative results at its dis-
cretion.
(h) Systems may apply to the State to conduct
more frequent monitoring than the minimum mon-
itoring frequencies specified in this section.
(i) Compliance with §§141.11 or 141.62(b) (as
appropriate) shall be determined based on the ana-
lytical result(s) obtained at each sampling point.
(1) For systems which are conducting monitor-
ing at a frequency greater than annual, compliance
with the maximum contaminant levels for anti-
mony, asbestos, barium, beryllium, cadmium,
chromium, cyanide, fluoride, mercury, nickel, sele-
nium or thallium is determined by a running an-
nual average at any sampling point. If the average
at any sampling point is greater than the MCL,
then the system is out of compliance. If any one
sample would cause the annual average to be ex-
ceeded, then the system is out of compliance im-
mediately. Any sample below the method detec-
tion limit shall be calculated at zero for the pur-
pose of determining the annual average.
(2) For systems which are monitoring annually,
or less frequently, the system is out of compliance
with the maximum contaminant levels for asbes-
tos, antimony, barium, beryllium, cadmium, chro-
mium, cyanide, fluoride, mercury, nickel, selenium
or thallium if the level of a contaminant at any
sampling point is greater than the MCL. If a con-
firmation sample is required by the State, the de-
termination of compliance will be based on the av-
erage of the two samples.
(3) Compliance with the maximum contaminant
levels for nitrate and nitrate is determined based
on one sample if the levels of these contaminants
are below the MCLs. If the levels of nitrate and/
or nitrite exceed the MCLs in the initial sample,
a confirmation sample is required in accordance
with paragraph (f)(2) of this section, and compli-
ance shall be determined based on the average of
the initial and confirmation samples.
(4) If a public water system has a distribution
system separable from other parts of the distribu-
tion system with no interconnections, the State
may allow the system to give public notice to only
the area served by that portion of the system
which is out of compliance.
(j) Each public water system shall monitor at
the time designated by the State during each com-
pliance period.
(k) Inorganic analysis:
(1) Analysis for the following contaminants
shall be conducted in accordance with the methods
in the following table, or their equivalent as deter-
mined by EPA. Criteria for analyzing arsenic, bar-
ium, beryllium, cadmium, calcium, chromium,
copper, lead, nickel, selenium, sodium, and thal-
lium with digestion or directly without digestion,
and other analytical test procedures are contained
in Technical Notes on Drinking Water Methods,
EPA-600/R-94-173, October 1994. This docu-
ment also contains approved analytical test meth-
ods which remain available for compliance mon-
itoring until July 1, 1996. These methods will not
be available for use after July 1, 1996. This docu-
ment is available from the National Technical In-
formation Service, NTIS PB95-104766, U.S. De-
partment of Commerce, 5285 Port Royal Road,
Springfield, Virginia 22161. The toll-free number
is 800-553-6847.
17
-------
§141.23
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18
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§141.23
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§141.23
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20
-------
§141.23
(2) Sample collection for antimony, asbestos, using the sample preservation, container, and max-
barium, beryllium, cadmium, chromium, cyanide, imum holding time procedures specified in the
fluoride, mercury, nickel, nitrate, nitrite, selenium, table below:
and thallium under this section shall be conducted
21
-------
§141.23
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22
-------
§141.24
(3) Analysis under this section shall only be
conducted by laboratories that have been certified
by EPA or the State. Laboratories may conduct
sample analysis under provisional certification
until January 1, 1996. To receive certification to
conduct analyses for antimony, asbestos, barium,
beryllium, cadmium, chromium, cyanide, fluoride,
mercury, nickel, nitrate, nitrite and selenium and
thallium, the laboratory must:
(i) Analyze Performance Evaluation samples
which include those substances provided by EPA
Environmental Monitoring Systems Laboratory or
equivalent samples provided by the State.
(ii) Achieve quantitative results on the analyses
that are within the following acceptance limits:
Contaminant
Antimony
Asbestos
Barium
Beryllium
Cadmium
Chromium
Cyanide
Fluoride
Mercury
Nickel
Nitrate
Nitrite
Selenium
Thallium
Acceptance limit
±30 at 20.006 mg/1
7. standard deviations based
on study statistics.
±15% at 20.15 mg/1
±15% at 20.001 mg/1
±20% at 20.002 mg/1
±15% at 20.01 mg/1
±25% at 20.1 mg/1
±10% at 21 to 10 mg/1
±30% at 20.0005 mg/1
±15% at 20.01 mg/1
±10% at 20.4 mg/1
±15% at 20.4 mg/1
±20% at 20.01 mg/1
±30% at 20.002 mg/1
(1) Analyses for the purpose of determining
compliance with § 141.11 shall be conducted using
the requirements specified in paragraphs (1)
through (q) of this section.
(1) Analyses for all community water systems
utilizing surface water sources shall be completed
by June 24, 1978. These analyses shall be repeated
at yearly intervals.
(2) Analyses for all community water systems
utilizing only ground water sources shall be com-
pleted by June 24, 1979. These analyses shall be
repeated at three-year intervals.
(3) For non-community water systems, whether
supplied by surface or ground sources, analyses
for nitrate shall be completed by December 24,
1980. These analyses shall be repeated at intervals
determined by the State.
(4) The State has the authority to determine
compliance or initiate enforcement action based
upon analytical results and other information com-
piled by their sanctioned representatives and agen-
cies.
(m) If the result of an analysis made under
paragraph (1) of this section indicates that the level
of any contaminant listed in §141.11 exceeds the
maximum contaminant level, the supplier of the
water shall report to the State within 7 days and
initiate three additional analyses at the same sam-
pling point within one month.
(n) When the average of four analyses made
pursuant to paragraph (m) of this section, rounded
to the same number of significant figures as the
maximum contaminant level for the substance in
question, exceeds the maximum contaminant level,
the supplier of water shall notify the State pursu-
ant to § 141.31 and give notice to the public pur-
suant to § 141.32. Monitoring after public notifica-
tion shall be at a frequency designated by the
State and shall continue until the maximum con-
taminant level has not been exceeded in two suc-
cessive samples or until a monitoring schedule as
a condition to a variance, exemption or enforce-
ment action shall become effective.
(o) The provisions of paragraphs (m) and (n) of
this section notwithstanding, compliance with the
maximum contaminant level for nitrate shall be
determined on the basis of the mean of two analy-
ses. When a level exceeding the maximum con-
taminant level for nitrate is found, a second analy-
sis shall be initiated within 24 hours, and if the
mean of the two analyses exceeds the maximum
contaminant level, the supplier of water shall re-
port his findings to the State pursuant to § 141.31
and shall notify the public pursuant to § 141.32.
(p) For the initial analyses required by para-
graph (1) (1), (2) or (3) of this section, data for
surface waters acquired within one year prior to
the effective date and data for ground waters ac-
quired within 3 years prior to the effective date of
this part may be substituted at the discretion of the
State.
(q) [Reserved]
[56 FR 3579, Jan. 30, 1991, as amended at 56 FR 30274,
July 1, 1991; 57 FR 31838, July 17, 1992; 59 FR 34322,
July 1, 1994; 59 FR 62466, Dec. 5, 1994; 60 FR 33932,
34085, June 29, 1995]
§141.24 Organic chemicals other than
total trihalomethanes, sampling
and analytical requirements.
(a)-(d) [Reserved]
(e) Analyses for the contaminants in this section
shall be conducted using the following EPA meth-
ods or their equivalent as approved by EPA. Meth-
ods 502.2, 505, 507, 508, 508A, 515.1 and 531.1
are in Methods for the Determination of Organic
Compounds in Drinking Water, EPA-600/4-88-
039, December 1988, Revised, July 1991. Methods
506, 547, 550, 550.1 and 551 are m Methods for
the Determination of Organic Compounds in
Drinking Water—Supplement I, EPA-600-4-90-
020, July 1990. Methods 515.2, 524.2, 548.1,
549.1, 552.1 and 555 are in Methods for the De-
termination of Organic Compounds in Drinking
Water—Supplement II, EPA-600/R-92-129, Au-
gust 1992. Method 1613 is titled "Tetra-through
Octa-Chlorinated Dioxins and Furans by Isotope-
Dilution HRGC/HRMS", EPA-821-B-94-005,
23
-------
§141.24
October 1994. These documents are available from
the National Technical Information Service, NTIS
PB91-231480, PB91-146027, PB92-207703 and
PB95-104774, U.S. Department of Commerce,
5285 Port Royal Road, Springfield, Virginia
22161. The toll-free number is 800-553-6847.
Method 6651 shall be followed in accordance with
the 18th edition of Standard Methods for the Ex-
amination of Water and Wastewater, 1992, Amer-
ican Public Health Association. This incorporation
by reference was approved by the Director of the
Federal Register in accordance with 5 U.S.C.
552(a) and 1 CFR part 51. Copies may be ob-
tained from the American Public Health Associa-
tion, 1015 Fifteenth Street NW., Washington, DC
20005. Copies may be inspected at EPA's Drink-
ing Water Docket, 401 M Street, SW., Washing-
ton, DC 20460; or at the Office of the Federal
Register, 800 North Capitol Street, NW., Suite
700, Washington, DC. Method 6610 shall be fol-
lowed in accordance with the Supplement to the
18th edition of Standard Methods for the Exam-
ination of Water and Wastewater, 1994, American
Public Health Association. This incorporation by
reference was approved by the Director of the
Federal Register in accordance with 5 U.S.C.
552(a) and 1 CFR part 51. Copies may be ob-
tained from the American Public Health Associa-
tion, 1015 Fifteenth Street NW., Washington, DC
20005. Copies may be inspected at EPA's Drink-
ing Water Docket, 401 M Street, SW., Washing-
ton, DC 20460; or at the Office of the Federal
Register, 800 North Capitol Street, NW., Suite
700, Washington, DC. Other analytical test proce-
dures are contained in Technical Notes on Drink-
ing Water Methods, EPA-600/R-94-173, October
1994, NTIS PB95-104766. This document also
contains approved analytical methods which re-
main available for compliance monitoring until
July 1, 1996. These methods will not be available
for use after July 1, 1996. EPA Methods 504.1,
508.1 and 525.2 are available from US EPA
EMSL, Cincinnati, OH 45268. The phone number
is 513-569-7586.
Contaminant
Benzene
Carbon tetrachloride
1,2-Dichloroethane
cis-Dichloroethylene
trans-Dichloroethylene
Styrene
Tetrachloroethylene
1,1,1 -Trichloroethane
1,2,4-Trichlorobenzene
502.2
502.2
5022
5022
5022
502.2
502.2
502.2
5022
5022
5022
502.2
502.2
502.2
5022
5022
502.2
Method
524.2.
524.2, 551.
5242
5242
5242
524.2.
524.2.
524.2.
5242
5242
5242
524.2.
524.2, 551.
524.2, 551.
524 2 551
5242
524.2.
Contaminant
1,1,2-Trichloroethane
Xylenes (total)
2,3,7,8-TCDD (dioxin)
24-D
2,4,5-TP (Silvex)
Benzo(a) pyrene
Chlordane
Dalapon
Di(2-ethylhexyl) adipate
Di(2-ethylhexyl) phthalate
Dibromochloropropane
(DBCP).
Endothall
Ethylene dibromide (EDB)
Glyphosate
Heptachlor Epoxide
Hexachlorocydopentadiene ...
Lindane
Oxamyl
PCBs2 (asdecachlo-
robiphenyl).
Pentachlorophenol
Toxaphene
Total Trihalomethanes
Method
502 2 524 2
502.2, 524.2.
502 2 524 2
502.2, 524.2.
1613.
5152 555 515 1
515.2, 555, 515.1.
505 1 507 525 2 508 1
505 1 507 525 2 508 1
525.2, 550, 550.1.
531 1 6610
505, 508, 525.2, 508.1.
552.1, 515.1.
506, 525.2.
506, 525.2.
504.1, 551.
5152 555 515 1
549 1
548.1.
505 508 525 2 508 1
504.1, 551.
547, 6651 .
505 508 525 2 508 1
505, 508, 525.2, 508.1.
505 508 525 2 508 1
505, 525.2, 508, 508.1.
505, 508, 525.2, 508.1.
505 508 525 2 508 1
531.1, 6610.
508A.
505 508
515.2, 525.2, 555, 515.1.
5152 555 515 1
505 1 507 525 2 508 1
505, 508, 525.2.
502.2, 524.2, 551.
1 A nitrogen-phosphorous detector should be substituted for
the electron capture detector in Method 505 (or another ap-
proved method should be used) to determine alachlor,
atrazine and simazine, if lower detection limits are required.
2 PCBs are qualitatively identified as Aroclors and measured
for compliance purposes as decachlorobiphenyl.
(f) Beginning with the initial compliance period,
analysis of the contaminants listed in § 141.61 (a)
(1) through (21) for the purpose of determining
compliance with the maximum contaminant level
shall be conducted as follows:
(1) Groundwater systems shall take a minimum
of one sample at every entry point to the distribu-
tion system which is representative of each well
after treatment (hereafter called a sampling point).
Each sample must be taken at the same sampling
point unless conditions make another sampling
point more representative of each source, treatment
plant, or within the distribution system.
(2) Surface water systems (or combined surface/
ground) shall take a minimum of one sample at
points in the distribution system that are represent-
ative of each source or at each entry point to the
distribution system after treatment (hereafter called
a sampling point). Each sample must be taken at
the same sampling point unless conditions make
another sampling point more representative of
each source, treatment plant, or within the dis-
tribution system.
24
-------
§141.24
(3) If the system draws water from more than
one source and the sources are combined before
distribution, the system must sample at an entry
point to the distribution system during periods of
normal operating conditions (i.e., when water rep-
resentative of all sources is being used).
(4) Each community and non-transient non-com-
munity water system shall take four consecutive
quarterly samples for each contaminant listed in
§ 141.61(a) (2) through (21) during each compli-
ance period, beginning in the initial compliance
period.
(5) If the initial monitoring for contaminants
listed in § 141.61(a) (1) through (8) and the mon-
itoring for the contaminants listed in §141.61 (a)
(9) through (21) as allowed in paragraph (f)(18)
has been completed by December 31, 1992, and
the system did not detect any contaminant listed in
§ 141.61(a) (1) through (21), then each ground and
surface water system shall take one sample annu-
ally beginning with the initial compliance period.
(6) After a minimum of three years of annual
sampling, the State may allow groundwater sys-
tems with no previous detection of any
contaiminant listed in § 141.61(a) to take one sam-
ple during each compliance period.
(7) Each community and non-transient non-
community ground water system which does not
detect a contaminant listed in §141.61(a) (1)
through (21) may apply to the State for a waiver
from the requirements of paragraphs (f)(5) and
(f)(6) of this section after completing the initial
monitoring. (For purposes of this section, detection
is defined as >0.0005 mg/1.) A waiver shall be ef-
fective for no more than six years (two compli-
ance periods). States may also issue waivers to
small systems for the initial round of monitoring
for 1,2,4-trichlorobenzene.
(8) A State may grant a waiver after evaluating
the following factor(s):
(i) Knowledge of previous use (including trans-
port, storage, or disposal) of the contaminant with-
in the watershed or zone of influence of the sys-
tem. If a determination by the State reveals no
previous use of the contaminant within the water-
shed or zone of influence, a waiver may be grant-
ed.
(ii) If previous use of the contaminant is un-
known or it has been used previously, then the fol-
lowing factors shall be used to determine whether
a waiver is granted.
(A) Previous analytical results.
(B) The proximity of the system to a potential
point or non-point source of contamination. Point
sources include spills and leaks of chemicals at or
near a water treatment facility or at manufacturing,
distribution, or storage facilities, or from hazard-
ous and municipal waste landfills and other waste
handling or treatment facilities.
(C) The environmental persistence and transport
of the contaminants.
(D) The number of persons served by the public
water system and the proximity of a smaller sys-
tem to a larger system.
(E) How well the water source is protected
against contamination, such as whether it is a sur-
face or groundwater system. Groundwater systems
must consider factors such as depth of the well,
the type of soil, and wellhead protection. Surface
water systems must consider watershed protection.
(9) As a condition of the waiver a groundwater
system must take one sample at each sampling
point during the time the waiver is effective (i.e.,
one sample during two compliance periods or six
years) and update its vulnerability assessment con-
sidering the factors listed in paragraph (f)(8) of
this section. Based on this vulnerability assessment
the State must reconfirm that the system is non-
vulnerable. If the State does not make this recon-
firmation within three years of the initial deter-
mination, then the waiver is invalidated and the
system is required to sample annually as specified
in paragraph (5) of this section.
(10) Each community and non-transient non-
community surface water system which does not
detect a contaminant listed in §141.61(a) (1)
through (21) may apply to the State for a waiver
from the requirements of (f)(5) of this section after
completing the initial monitoring. Composite sam-
ples from a maximum of five sampling points are
allowed, provided that the detection limit of the
method used for analysis is less than one-fifth of
the MCL. Systems meeting this criterion must be
determined by the State to be non-vulnerable
based on a vulnerability assessment during each
compliance period. Each system receiving a waiv-
er shall sample at the frequency specified by the
State (if any).
(11) If a contaminant listed in §141.61(a) (2)
through (21) is detected at a level exceeding
0.0005 mg/1 in any sample, then:
(i) The system must monitor quarterly at each
sampling point which resulted in a detection.
(ii) The State may decrease the quarterly mon-
itoring requirement speci fied in paragraph
(f)(ll)(i) of this section provided it has determined
that the system is reliably and consistently below
the maximum contaminant level. In no case shall
the State make this determination unless a ground-
water system takes a minimum of two quarterly
samples and a surface water system takes a mini-
mum of four quarterly samples.
(iii) If the State determines that the system is
reliably and consistently below the MCL, the State
may allow the system to monitor annually. Sys-
tems which monitor annually must monitor during
the quarter(s) which previously yielded the highest
analytical result.
25
-------
§141.24
(iv) Systems which have three consecutive an-
nual samples with no detection of a contaminant
may apply to the State for a waiver as specified
in paragraph (f)(7) of this section.
(v) Groundwater systems which have detected
one or more of the following two-carbon organic
compounds: trichloroethylene, tetrachloroethylene,
1,2-dichloroethane, 1,1,1-trichloroethane, cis-1,2-
dichloroethylene, trans-1,2-dichloroethylene, or
1,1-dichloroethylene shall monitor quarterly for
vinyl chloride. A vinyl chloride sample shall be
taken at each sampling point at which one or more
of the two-carbon organic compounds was de-
tected. If the results of the first analysis do not de-
tect vinyl chloride, the State may reduce the quar-
terly monitoring frequency of vinyl chloride mon-
itoring to one sample during each compliance pe-
riod. Surface water systems are required to mon-
itor for vinyl chloride as specified by the State.
(12) Systems which violate the requirements of
§141.61(a) (1) through (21), as determined by
paragraph (f)(15) of this section, must monitor
quarterly. After a minimum of four consecutive
quarterly samples which show the system is in
compliance as specified in paragraph (f)(15) of
this section the system and the State determines
that the system is reliably and consistently below
the maximum contaminant level, the system may
monitor at the frequency and times specified in
paragraph (f)(ll)(iii) of this section.
(13) The State may require a confirmation sam-
ple for positive or negative results. If a confirma-
tion sample is required by the State, the result
must be averaged with the first sampling result
and the average is used for the compliance deter-
mination as specified by paragraph (f)(15). States
have discretion to delete results of obvious sam-
pling errors from this calculation.
(14) The State may reduce the total number of
samples a system must analyze by allowing the
use of compositing. Composite samples from a
maximum of five sampling points are allowed,
provided that the detection limit of the method
used for analysis is less than one-fifth of the
MCL. Compositing of samples must be done in
the laboratory and analyzed within 14 days of
sample collection.
(i) If the concentration in the composite sample
is greater than or equal to 0.0005 mg/1 for any
contaminant listed in § 141.61(a), then a follow-up
sample must be taken within 14 days at each sam-
pling point included in the composite, and be ana-
lyzed for that contaminant.
(ii) If duplicates of the original sample taken
from each sampling point used in the composite
are available, the system may use these instead of
resampling. The duplicate must be analyzed and
the results reported to the State within 14 days of
collection.
(iii) If the population served by the system is >
3,300 persons, then compositing may only be per-
mitted by the State at sampling points within a
single system. In systems serving < 3,300 persons,
the State may permit compositing among different
systems provided the 5-sample limit is maintained.
(iv) Compositing samples prior to GC analysis.
(A) Add 5 ml or equal larger amounts of each
sample (up to 5 samples are allowed) to a 25 ml
glass syringe. Special precautions must be made to
maintain zero headspace in the syringe.
(B) The samples must be cooled at 4°C during
this step to minimize volatilization losses.
(C) Mix well and draw out a 5-ml aliquot for
analysis.
(D) Follow sample introduction, purging, and
desorption steps described in the method.
(E) If less than five samples are used for
compositing, a proportionately small syringe may
be used.
(v) Compositing samples prior to GC/MS analy-
sis.
(A) Inject 5-ml or equal larger amounts of each
aqueous sample (up to 5 samples are allowed) into
a 25-ml purging device using the sample introduc-
tion technique described in the method.
(B) The total volume of the sample in the purg-
ing device must be 25 ml.
(C) Purge and desorb as described in the meth-
od.
(15) Compliance with §141.61(a) (1) through
(21) shall be determined based on the analytical
results obtained at each sampling point.
(i) For systems which are conducting monitor-
ing at a frequency greater than annual, compliance
is determined by a running annual average of all
samples taken at each sampling point. If the an-
nual average of any sampling point is greater than
the MCL, then the system is out of compliance. If
the initial sample or a subsequent sample would
cause the annual average to be exceeded, then the
system is out of compliance immediately.
(ii) If monitoring is conducted annually, or less
frequently, the system is out of compliance if the
level of a contaminant at any sampling point is
greater than the MCL. If a confirmation sample is
required by the State, the determination of compli-
ance will be based on the average of two samples.
(iii) If a public water system has a distribution
system separable from other parts of the distribu-
tion system with no interconnections, the State
may allow the system to give public notice to only
that area served by that portion of the system
which is out of compliance.
(16) [Reserved]
(17) Analysis under this section shall only be
conducted by laboratories that are certified by
EPA or the State according to the following condi-
tions (laboratories may conduct sample analysis
26
-------
§141.24
under provisional certification until January 1,
1996):
(i) To receive certification to conduct analyses
for the contaminants in § 141.61 (a) (2) through
(21) the laboratory must:
(A) Analyze Performance Evaluation samples
which include these substances provided by EPA
Environmental Monitoring Systems Laboratory or
equivalent samples provided by the State.
(B) Achieve the quantitative acceptance limits
under paragraphs (f)(17)(i) (C) and (D) of this sec-
tion for at least 80 percent of the regulated organic
chemicals listed in § 141.61(a) (2) through (21).
(C) Achieve quantitative results on the analyses
performed under paragraph (f)(17)(i)(A) of this
section that are within ±20% of the actual amount
of the substances in the Performance Evaluation
sample when the actual amount is greater than or
equal to 0.010 mg/1.
(D) Achieve quantitative results on the analyses
performed under paragraph (f)(17)(i)(A) of this
section that are within ±40 percent of the actual
amount of the substances in the Performance Eval-
uation sample when the actual amount is less than
0.010 mg/1.
(E) Achieve a method detection limit of 0.0005
mg/1, according to the procedures in appendix B of
part 136.
(ii) To receive certification for vinyl chloride,
the laboratory must:
(A) Analyze Performance Evaluation samples
provided by EPA Environmental Monitoring Sys-
tems Laboratory or equivalent samples provided
by the State.
(B) Achieve quantitative results on the analyses
performed under paragraph (f)(17)(ii)(A) of this
section that are within ±40 percent of the actual
amount of vinyl chloride in the Performance Eval-
uation sample.
(C) Achieve a method detection limit of 0.0005
mg/1, according to the procedures in appendix B of
part 136.
(D) Obtain certification for the contaminants
listed in § 141.61(a)(2) through (21).
(18) States may allow the use of monitoring
data collected after January 1, 1988, required
under section 1445 of the Act for purposes of ini-
tial monitoring compliance. If the data are gen-
erally consistent with the other requirements of
this section, the State may use these data (i.e., a
single sample rather than four quarterly samples)
to satisfy the initial monitoring requirement of
paragraph (f)(4) of this section. Systems which use
grandfathered samples and did not detect any con-
taminant listed §141.61(a)(2) through (21) shall
begin monitoring annually in accordance with
paragraph (f)(5) of this section beginning with the
initial compliance period.
(19) States may increase required monitoring
where necessary to detect variations within the
system.
(20) Each certified laboratory must determine
the method detection limit (MDL), as defined in
appendix B to part 136, at which it is capable of
detecting VOCs. The acceptable MDL is 0.0005
mg/1. This concentration is the detection con-
centration for purposes of this section.
(21) Each public water system shall monitor at
the time designated by the State within each com-
pliance period.
(g) [Reserved]
(h) Analysis of the contaminants listed in
§ 141.61(c) for the purposes of determining com-
pliance with the maximum contaminant level shall
be conducted as follows: 7
(1) Groundwater systems shall take a minimum
of one sample at every entry point to the distribu-
tion system which is representative of each well
after treatment (hereafter called a sampling point).
Each sample must be taken at the same sampling
point unless conditions make another sampling
point more representative of each source or treat-
ment plant.
(2) Surface water systems shall take a minimum
of one sample at points in the distribution system
that are representative of each source or at each
entry point to the distribution system after treat-
ment (hereafter called a sampling point). Each
sample must be taken at the same sampling point
unless conditions make another sampling point
more representative of each source or treatment
plant.
NOTE: For purposes of this paragraph, surface
water systems include systems with a combination
of surface and ground sources.
(3) If the system draws water from more than
one source and the sources are combined before
distribution, the system must sample at an entry
point to the distribution system during periods of
normal operating conditions (i.e., when water rep-
resentative of all sources is being used).
(4) Monitoring frequency:
(i) Each community and non-transient non-com-
munity water system shall take four consecutive
quarterly samples for each contaminant listed in
§ 141.61(c) during each compliance period begin-
ning with the initial compliance period.
(ii) Systems serving more than 3,300 persons
which do not detect a contaminant in the initial
compliance period may reduce the sampling fre-
quency to a minimum of two quarterly samples in
one year during each repeat compliance period.
7 Monitoring for the contaminants aldicarb, aldicarb
sulfoxide, and aldicarb sulfone shall be conducted in ac-
cordance with § 141.40.
27
-------
§141.24
(iii) Systems serving less than or equal to 3,300
persons which do not detect a contaminant in the
initial compliance period may reduce the sampling
frequency to a minimum of one sample during
each repeat compliance period.
(5) Each community and non-transient water
system may apply to the State for a waiver from
the requirement of paragraph (h)(4) of this section.
A system must reapply for a waiver for each com-
pliance period.
(6) A State may grant a waiver after evaluating
the following factor(s): Knowledge of previous use
(including transport, storage, or disposal) of the
contaminant within the watershed or zone of influ-
ence of the system. If a determination by the State
reveals no previous use of the contaminant within
the watershed or zone of influence, a waiver may
be granted. If previous use of the contaminant is
unknown or it has been used previously, then the
following factors shall be used to determine
whether a waiver is granted.
(i) Previous analytical results.
(ii) The proximity of the system to a potential
point or non-point source of contamination. Point
sources include spills and leaks of chemicals at or
near a water treatment facility or at manufacturing,
distribution, or storage facilities, or from hazard-
ous and municipal waste landfills and other waste
handling or treatment facilities. Non-point sources
include the use of pesticides to control insect and
weed pests on agricultural areas, forest lands,
home and gardens, and other land application uses.
(iii) The environmental persistence and transport
of the pesticide or PCBs.
(iv) How well the water source is protected
against contamination due to such factors as depth
of the well and the type of soil and the integrity
of the well casing.
(v) Elevated nitrate levels at the water supply
source.
(vi) Use of PCBs in equipment used in the pro-
duction, storage, or distribution of water (i.e.,
PCBs used in pumps, transformers, etc.).
(7) If an organic contaminant listed in
§ 141.61(c) is detected (as defined by paragraph
(h)(18) of this section) in any sample, then:
(i) Each system must monitor quarterly at each
sampling point which resulted in a detection.
(ii) The State may decrease the quarterly mon-
itoring requirement specified in paragraph (h)(7)(i)
of this section provided it has determined that the
system is reliably and consistently below the max-
imum contaminant level. In no case shall the State
make this determination unless a groundwater sys-
tem takes a minimum of two quarterly samples
and a surface water system takes a minimum of
four quarterly samples.
(iii) After the State determines the system is re-
liably and consistently below the maximum con-
taminant level the State may allow the system to
monitor annually. Systems which monitor annually
must monitor during the quarter that previously
yielded the highest analytical result.
(iv) Systems which have 3 consecutive annual
samples with no detection of a contaminant may
apply to the State for a waiver as specified in
paragraph (h)(6) of this section.
(v) If monitoring results in detection of one or
more of certain related contaminants (aldicarb,
aldicarb sulfone, aldicarb sulfoxide and heptachlor,
heptachlor epoxide), then subsequent monitoring
shall analyze for all related contaminants.
(8) Systems which violate the requirements of
§ 141.61(c) as determined by paragraph (h)(ll) of
this section must monitor quarterly. After a mini-
mum of four quarterly samples show the system is
in compliance and the State determines the system
is reliably and consistently below the MCL, as
specified in paragraph (h)(ll) of this section, the
system shall monitor at the frequency specified in
paragraph (h)(7)(iii) of this section.
(9) The State may require a confirmation sam-
ple for positive or negative results. If a confirma-
tion sample is required by the State, the result
must be averaged with the first sampling result
and the average used for the compliance deter-
mination as specified by paragraph (h)(ll) of this
section. States have discretion to delete results of
obvious sampling errors from this calculation.
(10) The State may reduce the total number of
samples a system must analyze by allowing the
use of compositing. Composite samples from a
maximum of five sampling points are allowed,
provided that the detection limit of the method
used for analysis is less than one-fifth of the
MCL. Compositing of samples must be done in
the laboratory and analyzed within 14 days of
sample collection.
(i) If the concentration in the composite sample
detects one or more contaminants listed in
§ 141.61(c), then a follow-up sample must be
taken within 14 days at each sampling point in-
cluded in the composite, and be analyzed for that
contaminant.
(ii) If duplicates of the original sample taken
from each sampling point used in the composite
are available, the system may use these duplicates
instead of resampling. The duplicate must be ana-
lyzed and the results reported to the State within
14 days of collection.
(iii) If the population served by the system is
>3,300 persons, then compositing may only be
permitted by the State at sampling points within a
single system. In systems serving < 3,300 persons,
the State may permit compositing among different
systems provided the 5-sample limit is maintained.
28
-------
§141.24
ations within the system (e.g., fluctuations in con-
centration due to seasonal use, changes in water
source).
(16) The State has the authority to determine
compliance or initiate enforcement action based
upon analytical results and other information com-
piled by their sanctioned representatives and agen-
cies.
(17) Each public water system shall monitor at
the time designated by the State within each com-
pliance period.
(18) Detection as used in this paragraph shall be
defined as greater than or equal to the following
concentrations for each contaminant.
Contaminant
Detection
limit (mg/l)
(11) Compliance with § 141.61(c) shall be deter-
mined based on the analytical results obtained at
each sampling point.
(i) For systems which are conducting monitor-
ing at a frequency greater than annual, compliance
is determined by a running annual average of all
samples taken at each sampling point. If the an-
nual average of any sampling point is greater than
the MCL, then the system is out of compliance. If
the initial sample or a subsequent sample would
cause the annual average to be exceeded, then the
system is out of compliance immediately. Any
samples below the detection limit shall be cal-
culated as zero for purposes of determining the an-
nual average.
(ii) If monitoring is conducted annually, or less
frequently, the system is out of compliance if the
level of a contaminant at any sampling point is Alachlor 0002
greater than the MCL. If a confirmation sample is Aldicarb 0005
,...„....,. ... „ ,. Aldicarb sulfoxide 0005
required by the State, the determination of comph- A|d|carb su|fone OOQ8
ance will be based on the average of two samples. Atrazine 0001
(iii) If a public water system has a distribution Benzo[a]pyrene 00002
system separable from other parts of the distribu- Carbofuran 0009
tion system with no interconnections, the State DgJ^"8 go?2
may allow the system to give public notice to only i,2-Dibromo-3-chloropropane"(DBCP)'^^. '.00002
that portion of the system which is out of compli- Di (2-ethylhexyl) adipate 0006
ance. Di (2-ethylhexyl) phthalate 0006
(12) [Reserved] Dinoseb °002
(13) Analysis for PCBs shall be conducted as jTo" 0001
follows using the methods in paragraph (e) of this Endothall 009
section: Endrin 00001
(i) Each system which monitors for PCBs shall Ethylene dibromide (EDB) 00001
analyze each sample using either Method 505 or 2'yfih°ufte nnnn,
i, ^rw Heptachlor 00004
Method 50s. Heptachlor epoxide 00002
(ii) If PCBs (as one of seven Aroclors) are de- Hexachlorobenzene 0001
tected (as designated in this paragraph) in any Hexachlorocydopentadiene 0001
sample analyzed using Method 505 or 508, the Lindane °0002
, , „ 1.1 i • ,,.i j Methoxychlor 0001
system shall reanalyze the sample using Method oxamyl 002
508A to quantitate PCBs (as decachlorobiphenyl). Picloram 0001
Polychlorinated biphenyls (PCBs) (as
Aroclor Detection decachlorobiphenyl) 0001
limit (rr|g/l) Pentachlorophenol 00004
1n1R n nnms Simazine 00007
™ °'°°008 Toxaphene 001
.J232 00005 2,3,7,8-TCDD (Dioxin) 000000005
1242 ^^^^^^^^^^^^^^^^^^^^^^ 0^0003 2,4,5-TP (Silvex) 0002
1248 0.0001
1260 00002 (19) Anaylsis under this section shall only be
conducted by laboratories that have received cer-
(iii) Compliance with the PCB MCL shall be tification by EPA or the State and have met the
determined based upon the quantitative results of following conditions:
analyses using Method 508A. (i) To receive certification to conduct analyses
(14) If monitoring data collected after January for the contaminants in §141.61(c) the laboratory
1, 1990, are generally consistent with the require- must:
ments of § 141.24(h), then the State may allow (A) Analyze Performance Evaluation samples
systems to use that data to satisfy the monitoring which include those substances provided by EPA
requirement for the initial compliance period be- Environmental Monitoring and Support Laboratory
ginning January 1, 1993. or equivalent samples provided by the State.
(15) The State may increase the required mon- (B) Achieve quantitative results on the analyses
itoring frequency, where necessary, to detect vari- that are within the following acceptance limits:
29
-------
§141.25
Contaminant
DBCP
EDB
Atrazine
Benzo[a]pyrene
Carbofuran
Di(2-ethylhexyl)adipate
Di(2-ethylhexyl)phthalate
Dinoseb
Diquat
Endothall
Heptachlor
Heptachlor epoxide
Hexachlorobenzene
Hexachloro- cyclopentadiene
Oxamyl
PCBs (as
Decachlorobiphenyl)
Simazine
Toxaphene
Aldicarb
Pentachlorophenol
Acceptance limits (percent)
+40
+40
+45
+45.
2 standard deviations.
+45.
+45
2 standard deviations.
2 standard deviations.
2 standard deviations.
2 standard deviations.
+30
+45.
+45.
2 standard deviations.
2 standard deviations.
+45
+45
2 standard deviations.
0-200.
2 standard deviations.
+45.
2 standard deviations.
+50.
Contaminant
2,3,7,8-TCDD (Dioxin)
2,4-D
2,4,5-TP (Silvex)
Acceptance limits (percent)
2 standard deviations.
±50.
±50.
(ii) [Reserved]
(Approved by the Office of Management and Budget
under control number 2040-0090)
[40 FR 59570, Dec. 24, 1975, as amended at 44 FR
68641, Nov. 29, 1979; 45 FR 57345, Aug. 27, 1980; 47
FR 10998, Mar. 12, 1982; 52 FR 25712, July 8, 1987;
53 FR 5147, Feb. 19, 1988; 53 FR 25110, July 1, 1988;
56 FR 3583, Jan. 30, 1991; 56 FR 30277, July 1, 1991;
57 FR 22178, May 27, 1992; 57 FR 31841, July 17,
1992; 59 FR 34323, July 1, 1994; 59 FR 62468, Dec. 5,
1994; 60 FR 34085, June 29, 1995]
§141.25 Analytical methods for radio-
activity.
(a) Analysis for the following contaminants
shall be conducted to determine compliance with
§§141.15 and 141.16 (radioactivity) in accordance
with the methods in the following Table, or their
equivalent determined by EPA in accordance with
§141.27.
30
-------
§141.25
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32
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§141.26
(b) When the identification and measurement of
radionuclides other than those listed in paragraph
(a) of this section is required, the following ref-
erences are to be used, except in cases where al-
ternative methods have been approved in accord-
ance with § 141.27.
(1) Procedures for Radiochemical Analysis of
Nuclear Reactor Aqueous Solutions, H. L. Krieger
and S. Gold, EPA-R4-73-014. USEPA, Cin-
cinnati, Ohio, May 1973.
(2) HASL Procedure Manual, Edited by John H.
Harley. HASL 300, ERDA Health and Safety Lab-
oratory, New York, NY., 1973.
(c) For the purpose of monitoring radioactivity
concentrations in drinking water, the required sen-
sitivity of the radioanalysis is defined in terms of
a detection limit. The detection limit shall be that
concentration which can be counted with a preci-
sion of plus or minus 100 percent at the 95 per-
cent confidence level (1.96(7 where o is the stand-
ard deviation of the net counting rate of the sam-
ple).
(1) To determine compliance with §141.15(a)
the detection limit shall not exceed 1 pCi/1. To
determine compliance with §141.15(b) the detec-
tion limit shall not exceed 3 pCi/1.
(2) To determine compliance with §141.16 the
detection limits shall not exceed the concentrations
listed in Table B.
TABLE B—DETECTION LIMITS FOR MAN-MADE
BETA PARTICLE AND PHOTON EMITTERS
Radionuclide
Tritium
Strontium-89
Strontium-90
lodine-131
Gross beta
Other radionuclides
Detection limit
1,000 pCi/1.
10 pCi/1.
2 pCi/1
1 pCi/1
10 pCi/1
4 pCi/1 .
1/m of the applicable limit.
(d) To judge compliance with the maximum
contaminant levels listed in §§141.15 and 141.16,
averages of data shall be used and shall be round-
ed to the same number of significant figures as the
maximum contaminant level for the substance in
question.
(e) The State has the authority to determine
compliance or initiate enforcement action based
upon analytical results or other information com-
piled by their sanctioned representatives and agen-
cies.
[41 FR 28404, July 9, 1976, as amended at 45 FR 57345,
Aug. 27, 1980; 62 FR 10173, Mar. 5, 1997]
§141.26 Monitoring frequency for ra-
dioactivity in community water sys-
tems.
(a) Monitoring requirements for gross alpha par-
ticle activity, radium-226 and radium-228.
(1) Initial sampling to determine compliance
with §141.15 shall begin within two years of the
effective date of these regulations and the analysis
shall be completed within three years of the effec-
tive date of these regulations. Compliance shall be
based on the analysis of an annual composite of
four consecutive quarterly samples or the average
of the analyses of four samples obtained at quar-
terly intervals.
(i) A gross alpha particle activity measurement
may be substituted for the required radium-226
and radium-228 analysis Provided, That the meas-
ured gross alpha particle activity does not exceed
5 pCi/1 at a confidence level of 95 percent (1.65(7
where o is the standard deviation of the net count-
ing rate of the sample). In localities where ra-
dium-228 may be present in drinking water, it is
recommended that the State require radium-226
and/or radium-228 analyses when the gross alpha
particle activity exceeds 2 pCi/1.
(ii) When the gross alpha particle activity ex-
ceeds 5 pCi/1, the same or an equivalent sample
shall be analyzed for radium-226. If the con-
centration of radium-226 exceeds 3 pCi/1 the
same or an equivalent sample shall be analyzed
for radium-228.
(2) For the initial analysis required by paragraph
(a)(l) of this section, data acquired within one
year prior to the effective date of this part may be
substituted at the discretion of the State.
(3) Suppliers of water shall monitor at least
once every four years following the procedure re-
quired by paragraph (a)(l) of this section. At the
discretion of the State, when an annual record
taken in conformance with paragraph (a)(l) of this
section has established that the average annual
concentration is less than half the maximum con-
taminant levels established by § 141.15, analysis of
a single sample may be substituted for the quar-
terly sampling procedure required by paragraph
(a)(l) of this section.
(i) More frequent monitoring shall be conducted
when ordered by the State in the vicinity of min-
ing or other operations which may contribute
alpha particle radioactivity to either surface or
ground water sources of drinking water.
(ii) A supplier of water shall monitor in con-
formance with paragraph (a)(l) of this section
within one year of the introduction of a new water
source for a community water system. More fre-
quent monitoring shall be conducted when ordered
by the State in the event of possible contamination
or when changes in the distribution system or
treatment processing occur which may increase the
concentration of radioactivity in finished water.
(iii) A community water system using two or
more sources having different concentrations of ra-
dioactivity shall monitor source water, in addition
33
-------
§141.27
to water from a free-flowing tap, when ordered by
the State.
(iv) Monitoring for compliance with §141.15
after the initial period need not include radium-
228 except when required by the State, Provided,
That the average annual concentration of radium-
228 has been assayed at least once using the quar-
terly sampling procedure required by paragraph
(a)(l) of this section.
(v) Suppliers of water shall conduct annual
monitoring of any community water system in
which the radium-226 concentration exceeds 3
pCi/1, when ordered by the State.
(4) If the average annual maximum contaminant
level for gross alpha particle activity or total ra-
dium as set forth in § 141.15 is exceeded, the sup-
plier of a community water system shall give no-
tice to the State pursuant to §141.31 and notify
the public as required by §141.32. Monitoring at
quarterly intervals shall be continued until the an-
nual average concentration no longer exceeds the
maximum contaminant level or until a monitoring
schedule as a condition to a variance, exemption
or enforcement action shall become effective.
(b) Monitoring requirements for manmade ra-
dioactivity in community water systems.
(1) Within two years of the effective date of
this part, systems using surface water sources and
serving more than 100,000 persons and such other
community water systems as are designated by the
State shall be monitored for compliance with
§141.16 by analysis of a composite of four con-
secutive quarterly samples or analysis of four
quarterly samples. Compliance with §141.16 may
be assumed without further analysis if the average
annual concentration of gross beta particle activity
is less than 50 pCi/1 and if the average annual
concentrations of tritium and strontium-90 are less
than those listed in table A, Provided, That if both
radionuclides are present the sum of their annual
dose equivalents to bone marrow shall not exceed
4 millirem/year.
(i) If the gross beta particle activity exceeds 50
pCi/1, an analysis of the sample must be per-
formed to identify the major radioactive constitu-
ents present and the appropriate organ and total
body doses shall be calculated to determine com-
pliance with § 141.16.
(ii) Suppliers of water shall conduct additional
monitoring, as ordered by the State, to determine
the concentration of man-made radioactivity in
principal watersheds designated by the State.
(iii) At the discretion of the State, suppliers of
water utilizing only ground waters may be re-
quired to monitor for man-made radioactivity.
(2) For the initial analysis required by paragraph
(b)(l) of this section data acquired within one year
prior to the effective date of this part may be sub-
stituted at the discretion of the State.
(3) After the initial analysis required by para-
graph (b)(l) of this section suppliers of water shall
monitor at least every four years following the
procedure given in paragraph (b)(l) of this section.
(4) Within two years of the effective date of
these regulations the supplier of any community
water system designated by the State as utilizing
waters contaminated by effluents from nuclear fa-
cilities shall initiate quarterly monitoring for gross
beta particle and iodine-131 radioactivity and an-
nual monitoring for strontium-90 and tritium.
(i) Quarterly monitoring for gross beta particle
activity shall be based on the analysis of monthly
samples or the analysis of a composite of three
monthly samples. The former is recommended. If
the gross beta particle activity in a sample exceeds
15 pCi/1, the same or an equivalent sample shall
be analyzed for strontium-89 and cesium-134. If
the gross beta particle activity exceeds 50 pCi/1,
an analysis of the sample must be performed to
identify the major radioactive constituents present
and the appropriate organ and total body doses
shall be calculated to determine compliance with
§141.16.
(ii) For iodine-131, a composite of five con-
secutive daily samples shall be analyzed once each
quarter. As ordered by the State, more frequent
monitoring shall be conducted when iodine-131 is
identified in the finished water.
(iii) Annual monitoring for strontium-90 and
tritium shall be conducted by means of the analy-
sis of a composite of four consecutive quarterly
samples or analysis of four quarterly samples. The
latter procedure is recommended.
(iv) The State may allow the substitution of en-
vironmental surveillance data taken in conjunction
with a nuclear facility for direct monitoring of
manmade radioactivity by the supplier of water
where the State determines such data is applicable
to a particular community water system.
(5) If the average annual maximum contaminant
level for man-made radioactivity set forth in
§ 141.16 is exceeded, the operator of a community
water system shall give notice to the State pursu-
ant to §141.31 and to the public as required by
§ 141.32. Monitoring at monthly intervals shall be
continued until the concentration no longer ex-
ceeds the maximum contaminant level or until a
monitoring schedule as a condition to a variance,
exemption or enforcement action shall become ef-
fective.
[41 FR 28404, July 9, 1976]
§141.27 Alternate analytical tech-
niques.
(a) With the written permission of the State,
concurred in by the Administrator of the U.S.
EPA, an alternate analytical technique may be em-
ployed. An alternate technique shall be accepted
34
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§141.30
only if it is substantially equivalent to the pre-
scribed test in both precision and accuracy as it re-
lates to the determination of compliance with any
MCL. The use of the alternate analytical technique
shall not decrease the frequency of monitoring re-
quired by this part.
§141.28 Certified laboratories.
(a) For the purpose of determining compliance
with §§141.21 through 141.27, 141.41 and 141.42,
samples may be considered only if they have been
analyzed by a laboratory certified by the State ex-
cept that measurements for turbidity, free chlorine
residual, temperature and pH may be performed by
any person acceptable to the State.
(b) Nothing in this part shall be construed to
preclude the State or any duly designated rep-
resentative of the State from taking samples or
from using the results from such samples to deter-
mine compliance by a supplier of water with the
applicable requirements of this part.
[45 FR 57345, Aug. 27, 1980; 47 FR 10999, Mar. 12,
1982, as amended at 59 FR 34323, July 1, 1994]
§141.29 Monitoring of consecutive
public water systems.
When a public water system supplies water to
one or more other public water systems, the State
may modify the monitoring requirements imposed
by this part to the extent that the interconnection
of the systems justifies treating them as a single
system for monitoring purposes. Any modified
monitoring shall be conducted pursuant to a sched-
ule specified by the State and concurred in by the
Administrator of the U.S. Environmental Protec-
tion Agency.
§141.30 Total trihalomethanes sam-
pling, analytical and other require-
ments.
(a) Community water system which serve a
population of 10,000 or more individuals and
which add a disinfectant (oxidant) to the water in
any part of the drinking water treatment process
shall analyze for total trihalomethanes in accord-
ance with this section. For systems serving 75,000
or more individuals, sampling and analyses shall
begin not later than 1 year after the date of pro-
mulgation of this regulation. For systems serving
10,000 to 74,999 individuals, sampling and analy-
ses shall begin not later than 3 years after the date
of promulgation of this regulation. For the purpose
of this section, the minimum number of samples
required to be taken by the system shall be based
on the number of treatment plants used by the sys-
tem, except that multiple wells drawing raw water
from a single aquifer may, with the State approval,
be considered one treatment plant for determining
the minimum number of samples. All samples
taken within an established frequency shall be col-
lected within a 24-hour period.
(b)(l) For all community water systems utilizing
surface water sources in whole or in part, and for
all community water systems utilizing only ground
water sources that have not been determined by
the State to qualify for the monitoring require-
ments of paragraph (c) of this section, analyses for
total trihalomethanes shall be performed at quar-
terly intervals on at least four water samples for
each treatment plant used by the system. At least
25 percent of the samples shall be taken at loca-
tions within the distribution system reflecting the
maximum residence time of the water in the sys-
tem. The remaining 75 percent shall be taken at
representative locations in the distribution system,
taking into account number of persons served, dif-
ferent sources of water and different treatment
methods employed. The results of all analyses per
quarter shall be arithmetically averaged and re-
ported to the State within 30 days of the system's
receipt of such results. Results shall also be re-
ported to EPA until such monitoring requirements
have been adopted by the State. All samples col-
lected shall be used in the computation of the av-
erage, unless the analytical results are invalidated
for technical reasons. Sampling and analyses shall
be conducted in accordance with the methods list-
ed in paragraph (e) of this section.
(2) Upon the written request of a community
water system, the monitoring frequency required
by paragraph (b)(l) of this section may be reduced
by the State to a minimum of one sample analyzed
for TTHMs per quarter taken at a point in the dis-
tribution system reflecting the maximum residence
time of the water in the system, upon a written de-
termination by the State that the data from at least
1 year of monitoring in accordance with paragraph
(b)(l) of this section and local conditions dem-
onstrate that total trihalomethane concentrations
will be consistently below the maximum contami-
nant level.
(3) If at any time during which the reduced
monitoring frequency prescribed under this para-
graph applies, the results from any analysis exceed
0.10 mg/1 of TTHMs and such results are con-
firmed by at least one check sample taken prompt-
ly after such results are received, or if the system
makes any significant change to its source of
water or treatment program, the system shall im-
mediately begin monitoring in accordance with the
requirements of paragraph (b)(l) of this section,
which monitoring shall continue for at least 1 year
before the frequency may be reduced again. At the
option of the State, a system's monitoring fre-
quency may and should be increased above the
minimum in those cases where it is necessary to
35
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§141.30
detect variations of TTHM levels within the dis-
tribution system.
(c)(l) Upon written request to the State, a com-
munity water system utilizing only ground water
sources may seek to have the monitoring fre-
quency required by paragraph (b)(l) of this section
reduced to a minimum of one sample for maxi-
mum TTHM potential per year for each treatment
plant used by the system taken at a point in the
distribution system reflecting maximum residence
time of the water in the system. The system shall
submit the results of at least one sample for maxi-
mum TTHM potential using the procedure speci-
fied in paragraph (g) of this section. A sample
must be analyzed from each treatment plant used
by the system and be taken at a point in the dis-
tribution system reflecting the maximum residence
time of the water in the system. The system's
monitoring frequency may only be reduced upon
a written determination by the State that, based
upon the data submitted by the system, the system
has a maximum TTHM potential of less than 0.10
mg/1 and that, based upon an assessment of the
local conditions of the system, the system is not
likely to approach or exceed the maximum con-
taminant level for total TTHMs. The results of all
analyses shall be reported to the State within 30
days of the system's receipt of such results. Re-
sults shall also be reported to EPA until such
monitoring requirements have been adopted by the
State. All samples collected shall be used for de-
termining whether the system must comply with
the monitoring requirements of paragraph (b) of
this section, unless the analytical results are invali-
dated for technical reasons. Sampling and analyses
shall be conducted in accordance with the methods
listed in paragraph (e) of this section.
(2) If at any time during which the reduced
monitoring frequency prescribed under paragraph
(c)(l) of this section applies, the results from any
analysis taken by the system for maximum TTHM
potential are equal to or greater than 0.10 mg/1,
and such results are confirmed by at least one
check sample taken promptly after such results are
received, the system shall immediately begin mon-
itoring in accordance with the requirements of
paragraph (b) of this section and such monitoring
shall continue for at least one year before the fre-
quency may be reduced again. In the event of any
significant change to the system's raw water or
treatment program, the system shall immediately
analyze an additional sample for maximum TTHM
potential taken at a point in the distribution system
reflecting maximum residence time of the water in
the system for the purpose of determining whether
the system must comply with the monitoring re-
quirements of paragraph (b) of this section. At the
option of the State, monitoring frequencies may
and should be increased above the minimum in
those cases where this is necessary to detect vari-
ation of TTHM levels within the distribution sys-
tem.
(d) Compliance with §141.12(c) shall be deter-
mined based on a running annual average of quar-
terly samples collected by the system as prescribed
in paragraph (b) (1) or (2) of this section. If the
average of samples covering any 12 month period
exceeds the Maximum Contaminant Level, the
supplier of water shall report to the State pursuant
to §141.31 and notify the public pursuant to
§ 141.32. Monitoring after public notification shall
be at a frequency designated by the State and shall
continue until a monitoring schedule as a condi-
tion to a variance, exemption or enforcement ac-
tion shall become effective.
(e) Sampling and analyses made pursuant to this
section shall be conducted by one of the total
trihalomethane methods as directed in §141.24(e),
and the Technical Notes on Drinking Water Meth-
ods, EPA-600/R-94-173, October 1994, which is
available from NTIS, PB-104766. Samples for
TTHM shall be dechlorinated upon collection to
prevent further production of trihalomethanes, ac-
cording to the procedures described in the meth-
ods, except acidification is not required if only
THMs or TTHMs are to be determined. Samples
for maximum TTHM potential should not be
dechlorinated or acidified, and should be held for
seven days at 25°C (or above) prior to analysis.
(f) Before a community water system makes
any significant modifications to its existing treat-
ment process for the purposes of achieving com-
pliance with § 141.12(c), such system must submit
and obtain State approval of a detailed plan setting
forth its proposed modification and those safe-
guards that it will implement to ensure that the
bacteriological quality of the drinking water served
by such system will not be adversely affected by
such modification. Each system shall comply with
the provisions set forth in the State-approved plan.
At a minimum, a State approved plan shall require
the system modifying its disinfection practice to:
(1) Evaluate the water system for sanitary de-
fects and evaluate the source water for biological
quality;
(2) Evaluate its existing treatment practices and
consider improvements that will minimize dis-
infectant demand and optimize finished water
quality throughout the distribution system;
(3) Provide baseline water quality survey data
of the distribution system. Such data should in-
clude the results from monitoring for coliform and
fecal coliform bacteria, fecal streptococci, standard
plate counts at 35° C and 20° C, phosphate, am-
monia nitrogen and total organic carbon. Virus
studies should be required where source waters are
heavily contaminated with sewage effluent;
36
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§141.32
(4) Conduct additional monitoring to assure
continued maintenance of optimal biological qual-
ity in finished water, for example, when
chloramines are introduced as disinfectants or
when pre-chlorination is being discontinued. Addi-
tional monitoring should also be required by the
State for chlorate, chlorite and chlorine dioxide
when chlorine dioxide is used. Standard plate
count analyses should also be required by the
State as appropriate before and after any modifica-
tions;
(5) Consider inclusion in the plan of provisions
to maintain an active disinfectant residual through-
out the distribution system at all times during and
after the modification.
(g) The water sample for determination of maxi-
mum total trihalomethane potential is taken from
a point in the distribution system that reflects
maximum residence time. Procedures for sample
collection and handling are given in the methods.
No reducing agent is added to "quench" the
chemical reaction producing THMs at the time of
sample collection. The intent is to permit the level
of THM precursors to be depleted and the con-
centration of THMs to be maximized for the sup-
ply being tested. Four experimental parameters af-
fecting maximum THM production are pH, tem-
perature, reaction time and the presence of a dis-
infectant residual. These parameters are dealt with
as follows: Measure the disinfectant residual at the
selected sampling point. Proceed only if a measur-
able disinfectant residual is present. Collect trip-
licate 40 ml water samples at the pH prevailing at
the time of sampling, and prepare a method blank
according to the methods. Seal and store these
samples together for seven days at 25°C or above.
After this time period, open one of the sample
containers and check for disinfectant residual. Ab-
sence of a disinfectant residual invalidates the
sample for further analysis. Once a disinfectant re-
sidual has been demonstrated, open another of the
sealed samples and determine total THM con-
centration using an approved analytical method.
[44 FR 68641, Nov. 29, 1979, as amended at 45 FR
15545, 15547, Mar. 11, 1980; 58 FR 41345, Aug. 3,
1993; 59 FR 62469, Dec. 5, 1994; 60 FR 34085, June 29,
1995]
Sub part D—Reporting, Public
Notification and Recordkeeping
§141.31 Reporting requirements.
(a) Except where a shorter period is specified in
this part, the supplier of water shall report to the
State the results of any test measurement or analy-
sis required by this part within (1) The first ten
days following the month in which the result is re-
ceived, or (2) the first ten days following the end
of the required monitoring period as stipulated by
the State, whichever of these is shortest.
(b) Except where a different reporting period is
specified in this part, the supplier of water must
report to the State within 48 hours the failure to
comply with any national primary drinking water
regulation (including failure to comply with mon-
itoring requirements) set forth in this part.
(c) The supplier of water is not required to re-
port analytical results to the State in cases where
a State laboratory performs the analysis and re-
ports the results to the State office which would
normally receive such notification from the sup-
plier.
(d) The water supply system, within ten days of
completion of each public notification required
pursuant to §141.32, shall submit to the State a
representative copy of each type of notice distrib-
uted, published, posted, and/or made available to
the persons served by the system and/or to the
media.
(e) The water supply system shall submit to the
State within the time stated in the request copies
of any records required to be maintained under
§ 141.33 hereof or copies of any documents then
in existence which the State or the Administrator
is entitled to inspect pursuant to the authority of
section 1445 of the Safe Drinking Water Act or
the equivalent provisions of State law.
[40 FR 59570, Dec. 24, 1975, as amended at 45 FR
57345, Aug. 27, 1980]
§ 141.32 Public notification.
The requirements in this section are effective
April 28, 1989. The requirements of §141.36
apply until April 28, 1989.
(a) Maximum contaminant level (MCL), treat-
ment technique, and variance and exemption
schedule violations. The owner or operator of a
public water system which fails to comply with an
applicable MCL or treatment technique established
by this part or which fails to comply with the re-
quirements of any schedule prescribed pursuant to
a variance or exemption, shall notify persons
served by the system as follows:
(1) Except as provided in paragraph (a)(3) of
this section, the owner or operator of a public
water system must give notice:
(i) By publication in a daily newspaper of gen-
eral circulation in the area served by the system
as soon as possible, but in no case later than 14
days after the violation or failure. If the area
served by a public water system is not served by
a daily newspaper of general circulation, notice
shall instead be given by publication in a weekly
newspaper of general circulation serving the area;
and
(ii) By mail delivery (by direct mail or with the
water bill), or by hand delivery, not later than 45
37
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§141.32
days after the violation or failure. The State may
waive mail or hand delivery if it determines that
the owner or operator of the public water system
in violation has corrected the violation or failure
within the 45-day period. The State must make the
waiver in writing and within the 45-day period;
and
(iii) For violations of the MCLs of contaminants
that may pose an acute risk to human health, by
furnishing a copy of the notice to the radio and
television stations serving the area served by the
public water system as soon as possible but in no
case later than 72 hours after the violation. The
following violations are acute violations:
(A) Any violations specified by the State as
posing an acute risk to human health.
(B) Violation of the MCL for nitrate or nitrite
as defined in § 141.62 and determined according to
§ 141.23(i)(3).
(C) Violation of the MCL for total coliforms,
when fecal coliforms or E. coli are present in the
water distribution system, as specified in
§ 141.63(b).
(D) Occurrence of a waterborne disease out-
break, as defined in §141.2, in an unfiltered sys-
tem subject to the requirements of subpart H of
this part, after December 30, 1991 (see
§ 141.71(b)(4)).
(2) Except as provided in paragraph (a)(3) of
this section, following the initial notice given
under paragraph (a)(l) of this section, the owner
or operator of the public water system must give
notice at least once every three months by mail
delivery (by direct mail or with the water bill) or
by hand delivery, for as long as the violation or
failure exists.
(3)(i) In lieu of the requirements of paragraphs
(a) (1) and (2) of this section, the owner or opera-
tor of a community water system in an area that
is not served by a daily or weekly newspaper of
general circulation must give notice by hand deliv-
ery or by continuous posting in conspicuous places
within the area served by the system. Notice by
hand delivery or posting must begin as soon as
possible, but no later than 72 hours after the viola-
tion or failure for acute violations (as defined in
paragraph (a)(l)(iii) of this section), or 14 days
after the violation or failure (for any other viola-
tion). Posting must continue for as long as the vio-
lation or failure exists. Notice by hand delivery
must be repeated at least every three months for
as long as the violation or failure exists.
(ii) In lieu of the requirements of paragraphs (a)
(1) and (2) of this section, the owner or operator
of a non-community water system may give notice
by hand delivery or by continuous posting in con-
spicuous places within the area served by the sys-
tem. Notice by hand delivery or posting must
begin as soon as possible, but no later than 72
hours after the violation or failure for acute viola-
tions (as defined in paragraph (a)(l)(iii) of this
section), or 14 days after the violation or failure
(for any other violation). Posting must continue for
as long as the violation or failure exists. Notice by
hand delivery must be repeated at least every three
months for as long as the violation or failure ex-
ists.
(b) Other violations, variances, exemptions. The
owner or operator of a public water system which
fails to perform monitoring required by section
1445(a) of the Act (including monitoring required
by the National Primary Drinking Water Regula-
tions (NPDWRs) of this part), fails to comply with
a testing procedure established by this part, is sub-
ject to a variance granted under section
1415(a)(l)(A) or 1415(a)(2) of the Act, or is sub-
ject to an exemption under section 1416 of the
Act, shall notify persons served by the system as
follows:
(1) Except as provided in paragraph (b)(3) or
(b)(4) of this section, the owner or operator of a
public water system must give notice within three
months of the violation or granting of a variance
or exemption by publication in a daily newspaper
of general circulation in the area served by the
system. If the area served by a public water sys-
tem is not served by a daily newspaper of general
circulation, notice shall instead be given by publi-
cation in a weekly newspaper of general circula-
tion serving the area.
(2) Except as provided in paragraph (b)(3) or
(b)(4) of this section, following the initial notice
given under paragraph (b)(l) of this section, the
owner or operator of the public water system must
give notice at least once every three months by
mail delivery (by direct mail or with the water
bill) or by hand delivery, for as long as the viola-
tion exists. Repeat notice of the existence of a
variance or exemption must be given every three
months for as long as the variance or exemption
remains in effect.
(3)(i) In lieu of the requirements of paragraphs
(b)(l) and (b)(2) of this section, the owner or op-
erator of a community water system in an area
that is not served by a daily or weekly newspaper
of general circulation must give notice, within
three months of the violation or granting of the
variance or exemption, by hand delivery or by
continuous posting in conspicuous places with the
area served by the system. Posting must continue
for as long as the violation exists or a variance or
exemption remains in effect. Notice by hand deliv-
ery must be repeated at least every three months
for as long as the violation exists or a variance or
exemption remains in effect.
(ii) In lieu of the requirements of paragraphs
(b)(l) and (b)(2) of this section, the owner or op-
erator of a non-community water system may give
38
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§141.32
notice, within three months of the violation or the
granting of the variance or exemption, by hand de-
livery or by continuous posting in conspicuous
places within the area served by the system. Post-
ing must continue for as long as the violation ex-
ists, or a variance or exemption remains in effect.
Notice by hand delivery must be repeated at least
every three months for as long as the violation ex-
ists or a variance or exemption remains in effect.
(4) In lieu of the requirements of paragraphs
(b)(l), (b)(2), and (b)(3) of this section, the owner
or operator of a public water system, at the discre-
tion of the State, may provide less frequent notice
for minor monitoring violations as defined by the
State, if EPA has approved the State's application
for a program revision under §142.16. Notice of
such violations must be given no less frequently
than annually.
(c) Notice to new billing units. The owner or
operator of a community water system must give
a copy of the most recent public notice for any
outstanding violation of any maximum contami-
nant level, or any treatment technique requirement,
or any variance or exemption schedule to all new
billing units or new hookups prior to or at the
time service begins.
(d) General content of public notice. Each no-
tice required by this section must provide a clear
and readily understandable explanation of the vio-
lation, any potential adverse health effects, the
population at risk, the steps that the public water
system is taking to correct such violation, the ne-
cessity for seeking alternative water supplies, if
any, and any preventive measures the consumer
should take until the violation is corrected. Each
notice shall be conspicuous and shall not contain
unduly technical language, unduly small print, or
similar problems that frustrate the purpose of the
notice. Each notice shall include the telephone
number of the owner, operator, or designee of the
public water system as a source of additional in-
formation concerning the notice. Where appro-
priate, the notice shall be multi-lingual.
(e) Mandatory health effects language. When
providing the information on potential adverse
health effects required by paragraph (d) of this
section in notices of violations of maximum con-
taminant levels or treatment technique require-
ments, or notices of the granting or the continued
existence of exemptions or variances, or notices of
failure to comply with a variance or exemption
schedule, the owner or operator of a public water
system shall include the language specified below
for each contaminant. (If language for a particular
contaminant is not specified below at the time no-
tice is required, this paragraph does not apply.)
(1) Trichloroethylene. The United States Envi-
ronmental Protection Agency (EPA) sets drinking
water standards and has determined that
trichloroethylene is a health concern at certain lev-
els of exposure. This chemical is a common metal
cleaning and dry cleaning fluid. It generally gets
into drinking water by improper waste disposal.
This chemical has been shown to cause cancer in
laboratory animals such as rats and mice when the
animals are exposed at high levels over their life-
times. Chemicals that cause cancer in laboratory
animals also may increase the risk of cancer in hu-
mans who are exposed at lower levels over long
periods of time. EPA has set forth the enforceable
drinking water standard for trichloroethylene at
0.005 parts per million (ppm) to reduce the risk of
cancer or other adverse health effects which have
been observed in laboratory animals. Drinking
water which meets this standard is associated with
little to none of this risk and should be considered
safe.
(2) Carbon tetrachloride. The United States En-
vironmental Protection Agency (EPA) sets drink-
ing water standards and has determined that car-
bon tetrachloride is a health concern at certain lev-
els of exposure. This chemical was once a popular
household cleaning fluid. It generally gets into
drinking water by improper waste disposal. This
chemical has been shown to cause cancer in lab-
oratory animals such as rats and mice when the
animals are exposed at high levels over their life-
times. Chemicals that cause cancer in laboratory
animals also may increase the risk of cancer in hu-
mans who are exposed at lower levels over long
periods of of time. EPA has set the enforceable
drinking water standard for carbon tetrachloride at
0.005 parts per million (ppm) to reduce the risk of
cancer or other adverse health effects which have
been observed in laboratory animals. Drinking
water which meets this standard is associated with
little to none of this risk and should be considered
safe.
(3) 1,2-Dichloroethane. The United States Envi-
ronmental Protection Agency (EPA) sets drinking
water standards and has determined that 1,2-
dichloroethane is a health concern at certain levels
of exposure. This chemical is used as a cleaning
fluid for fats, oils, waxes, and resins. It generally
gets into drinking water from improper waste dis-
posal. This chemical has been shown to cause can-
cer in laboratory animals such as rats and mice
when the animals are exposed at high levels over
their lifetimes. Chemicals that cause cancer in lab-
oratory animals also may increase the risk of can-
cer in humans who are exposed at lower levels
over long periods of time. EPA has set the en-
forceable drinking water standard for 1,2-
dichloroethane at 0.005 parts per million (ppm) to
reduce the risk of cancer or other adverse health
effects which have been observed in laboratory
animals. Drinking water which meets this standard
39
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§141.32
is associated with little to none of this risk and
should be considered safe.
(4) Vinyl chloride. The United States Environ-
mental Protection Agency (EPA) sets drinking
water standards and has determined that vinyl
chloride is a health concern at certain levels of ex-
posure. This chemical is used in industry and is
found in drinking water as a result of the break-
down of related solvents. The solvents are used as
cleaners and degreasers of metals and generally
get into drinking water by improper waste dis-
posal. This chemical has been associated with sig-
nificantly increased risks of cancer among certain
industrial workers who were exposed to relatively
large amounts of this chemical during their work-
ing careers. This chemical has also been shown to
cause cancer in laboratory animals when the ani-
mals are exposed at high levels over their life-
times. Chemicals that cause increased risk of can-
cer among exposed industrial workers and in lab-
oratory animals also may increase the risk of can-
cer in humans who are exposed at lower levels
over long periods of time. EPA has set the en-
forceable drinking water standard for vinyl chlo-
ride at 0.002 part per million (ppm) to reduce the
risk of cancer or other adverse health effects
which have been observed in humans and labora-
tory animals. Drinking water which meets this
standard is associated with little to none of this
risk and should be considered safe.
(5) Benzene. The United States Environmental
Protection Agency (EPA) sets drinking water
standards and has determined that benzene is a
health concern at certain levels of exposure. This
chemical is used as a solvent and degreaser of
metals. It is also a major component of gasoline.
Drinking water contamination generally results
from leaking undergound gasoline and petroleum
tanks or improper waste disposal. This chemical
has been associated with significantly increased
risks of leukemia among certain industrial workers
who were exposed to relatively large amounts of
this chemical during their working careers. This
chemical has also been shown to cause cancer in
laboratory animals when the animals are exposed
at high levels over their lifetimes. Chemicals that
cause increased risk of cancer among exposed in-
dustrial workers and in laboratory animals also
may increase the risk of cancer in humans who are
exposed at lower levels over long periods of time.
EPA has set the enforceable drinking water stand-
ard for benzene at 0.005 parts per million (ppm)
to reduce the risk of cancer or other adverse health
effects which have been observed in humans and
laboratory animals. Drinking water which meets
this standard is associated with little to none of
this risk and should be considered safe.
(6) 1,1 -Dichloroethylene. The United States En-
vironmental Protection Agency (EPA) sets drink-
ing water standards and has determined that 1,1-
dichloroethylene is a health concern at certain lev-
els of exposure. This chemical is used in industry
and is found in drinking water as a result of the
breakdown of related solvents. The solvents are
used as cleaners and degreasers of metals and gen-
erally get into drinking water by improper waste
disposal. This chemical has been shown to cause
liver and kidney damage in laboratory animals
such as rats and mice when the animals are ex-
posed at high levels over their lifetimes. Chemi-
cals which cause adverse effects in laboratory ani-
mals also may cause adverse health effects in hu-
mans who are exposed at lower levels over long
periods of time. EPA has set the enforceable
drinking water standard for 1,1-dichloroethylene at
0.007 parts per million (ppm) to reduce the risk of
these adverse health effects which have been ob-
served in laboratory animals. Drinking water
which meets this standard is associated with little
to none of this risk and should be considered safe.
(7) Para-dichlorobenzene. The United States
Environmental Protection Agency (EPA) sets
drinking water standards and has determined that
para-dichlorobenzene is a health concern at certain
levels of exposure. This chemical is a component
of deodorizers, moth balls, and pesticides. It gen-
erally gets into drinking water by improper waste
disposal. This chemical has been shown to cause
liver and kidney damage in laboratory animals
such as rats and mice when the animals are ex-
posed to high levels over their lifetimes. Chemi-
cals which cause adverse effects in laboratory ani-
mals also may cause adverse health effects in hu-
mans who are exposed at lower levels over long
periods of time. EPA has set the enforceable
drinking water standard for para-dichlorobenzene
at 0.075 parts per million (ppm) to reduce the risk
of these adverse health effects which have been
observed in laboratory animals. Drinking water
which meets this standard is associated with little
to none of this risk and should be considered safe.
(8) 1,1,1-Trichloroethane. The United States
Environmental Protection Agency (EPA) sets
drinking water standards and has determined that
the 1,1,1-trichloroethane is a health concern at cer-
tain levels of exposure. This chemical is used as
a cleaner and degreaser of metals. It generally gets
into drinking water by improper waste disposal.
This chemical has been shown to damage the
liver, nervous system, and circulatory system of
laboratory animals such as rats and mice when the
animals are exposed at high levels over their life-
times. Some industrial workers who were exposed
to relatively large amounts of this chemical during
their working careers also suffered damage to the
liver, nervous system, and circulatory system.
Chemicals which cause adverse effects among ex-
posed industrial workers and in laboratory animals
40
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§141.32
also may cause adverse health effects in humans
who are exposed at lower levels over long periods
of time. EPA has set the enforceable drinking
water standard for 1,1,1-trichloroethane at 0.2
parts per million (ppm) to protect against the risk
of these adverse health effects which have been
observed in humans and laboratory animals.
Drinking water which meets this standard is asso-
ciated with little to none of this risk and should
be considered safe.
(9) Fluoride.
[NOTE: EPA is not specifying language that must be in-
cluded in a public notice for a violation of the fluoride
maximum contaminant level in this section because
§ 143.5 of this part includes the necessary information.
See paragraph (f) of this section.]
(10) Microbiological contaminants (for use
when there is a violation of the treatment tech-
nique requirements for filtration and disinfection
in subpart H of this part). The United States Envi-
ronmental Protection Agency (EPA) sets drinking
water standards and has determined that the pres-
ence of microbiological contaminants are a health
concern at certain levels of exposure. If water is
inadequately treated, microbiological contaminants
in that water may cause disease. Disease symp-
toms may include diarrhea, cramps, nausea, and
possibly jaundice, and any associated headaches
and fatigue. These symptoms, however, are not
just associated with disease-causing organisms in
drinking water, but also may be caused by a num-
ber of factors other than your drinking water. EPA
has set enforceable requirements for treating drink-
ing water to reduce the risk of these adverse
health effects. Treatment such as filtering and dis-
infecting the water removes or destroys micro-
biological contaminants. Drinking water which is
treated to meet EPA requirements is associated
with little to none of this risk and should be con-
sidered safe.
(11) Total coliforms (To be used when there is
a violation of § 141.63(a), and not a violation of
§ 141.63(b)). The United States Environmental
Protection Agency (EPA) sets drinking water
standards and has determined that the presence of
total coliforms is a possible health concern. Total
coliforms are common in the environment and are
generally not harmful themselves. The presence of
these bacteria in drinking water, however, gen-
erally is a result of a problem with water treatment
or the pipes which distribute the water, and indi-
cates that the water may be contaminated with or-
ganisms that can cause disease. Disease symptoms
may include diarrhea, cramps, nausea, and pos-
sibly jaundice, and any associated headaches and
fatigue. These symptoms, however, are not just as-
sociated with disease-causing organisms in drink-
ing water, but also may be caused by a number of
factors other than your drinking water. EPA has
set an enforceable drinking water standard for total
coliforms to reduce the risk of these adverse
health effects. Under this standard, no more than
5.0 percent of the samples collected during a
month can contain these bacteria, except that sys-
tems collecting fewer than 40 samples/month that
have one total coliform-positive sample per month
are not violating the standard. Drinking water
which meets this standard is usually not associated
with a health risk from disease-causing bacteria
and should be considered safe.
(12) Fecal Coliforms/E. coli (To be used when
there is a violation of § 141.63(b) or both § 141.63
(a) and (b)). The United States Environmental Pro-
tection Agency (EPA) sets drinking water stand-
ards and has determined that the presence of fecal
coliforms or E. coli is a serious health concern.
Fecal coliforms and E. coli are generally not
harmful themselves, but their presence in drinking
water is serious because they usually are associ-
ated with sewage or animal wastes. The presence
of these bacteria in drinking water is generally a
result of a problem with water treatment or the
pipes which distribute the water, and indicates that
the water may be contaminated with organisms
that can cause disease. Disease symptoms may in-
clude diarrhea, cramps, nausea, and possibly jaun-
dice, and associated headaches and fatigue. These
symptoms, however, are not just associated with
disease-causing organisms in drinking water, but
also may be caused by a number of factors other
than your drinking water. EPA has set an enforce-
able drinking water standard for fecal coliforms
and E. coli to reduce the risk of these adverse
health effects. Under this standard all drinking
water samples must be free of these bacteria.
Drinking water which meets this standard is asso-
ciated with little or none of this risk and should
be considered safe. State and local health authori-
ties recommend that consumers take the following
precautions: [To be inserted by the public water
system, according to instructions from State or
local authorities].
(13) Lead. The United States Environmental
Protection Agency (EPA) sets drinking water
standards and has determined that lead is a health
concern at certain exposure levels. Materials that
contain lead have frequently been used in the con-
struction of water supply distribution systems, and
plumbing systems in private homes and other
buildings. The most commonly found materials in-
clude service lines, pipes, brass and bronze fix-
tures, and solders and fluxes. Lead in these mate-
rials can contaminate drinking water as a result of
the corrosion that takes place when water comes
into contact with those materials. Lead can cause
a variety of adverse health effects in humans. At
relatively low levels of exposure, these effects
may include interference with red blood cell
41
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§141.32
chemistry, delays in normal physical and mental
development in babies and young children, slight
deficits in the attention span, hearing, and learning
abilities of children, and slight increases in the
blood pressure of some adults. EPA's national pri-
mary drinking water regulation requires all public
water systems to optimize corrosion control to
minimize lead contamination resulting from the
corrosion of plumbing materials. Public water sys-
tems serving 50,000 people or fewer that have
lead concentrations below 15 parts per billion
(ppb) in more than 90% of tap water samples (the
EPA "action level") have optimized their corro-
sion control treatment. Any water system that ex-
ceeds the action level must also monitor their
source water to determine whether treatment to re-
move lead in source water is needed. Any water
system that continues to exceed the action level
after installation of corrosion control and/or source
water treatment must eventually replace all lead
service lines contributing in excess of 15 (ppb) of
lead to drinking water. Any water system that ex-
ceeds the action level must also undertake a public
education program to inform consumers of ways
they can reduce their exposure to potentially high
levels of lead in drinking water.
(14) Copper. The United States Environmental
Protection Agency (EPA) sets drinking water
standards and has determined that copper is a
health concern at certain exposure levels. Copper,
a reddish-brown metal, is often used to plumb res-
idential and commercial structures that are con-
nected to water distribution systems. Copper con-
taminating drinking water as a corrosion byproduct
occurs as the result of the corrosion of copper
pipes that remain in contact with water for a pro-
longed period of time. Copper is an essential nutri-
ent, but at high doses it has been shown to cause
stomach and intestinal distress, liver and kidney
damage, and anemia. Persons with Wilson's dis-
ease may be at a higher risk of health effects due
to copper than the general public. EPA's national
primary drinking water regulation requires all pub-
lic water systems to install optimal corrosion con-
trol to minimize copper contamination resulting
from the corrosion of plumbing materials. Public
water systems serving 50,000 people or fewer that
have copper concentrations below 1.3 parts per
million (ppm) in more than 90% of tap water sam-
ples (the EPA "action level") are not required to
install or improve their treatment. Any water sys-
tem that exceeds the action level must also mon-
itor their source water to determine whether treat-
ment to remove copper in source water is needed.
(15) Asbestos. The United States Environmental
Protection Agency (EPA) sets drinking water
standards and has determined that asbestos fibers
greater than 10 micrometers in length are a health
concern at certain levels of exposure. Asbestos is
a naturally occurring mineral. Most asbestos fibers
in drinking water are less than 10 micrometers in
length and occur in drinking water from natural
sources and from corroded asbestos-cement pipes
in the distribution system. The major uses of as-
bestos were in the production of cements, floor
tiles, paper products, paint, and caulking; in trans-
portation-related applications; and in the produc-
tion of textiles and plastics. Asbestos was once a
popular insulating and fire retardent material. Inha-
lation studies have shown that various forms of as-
bestos have produced lung tumors in laboratory
animals. The available information on the risk of
developing gastrointestinal tract cancer associated
with the ingestion of asbestos from drinking water
is limited. Ingestion of intermediate-range
chrysotile asbestos fibers greater than 10 microm-
eters in length is associated with causing benign
tumors in male rats. Chemicals that cause cancer
in laboratory animals also may increase the risk of
cancer in humans who are exposed over long peri-
ods of time. EPA has set the drinking water stand-
ard for asbestos at 7 million long fibers per liter
to reduce the potential risk of cancer or other ad-
verse health effects which have been observed in
laboratory animals. Drinking water which meets
the EPA standard is associated with little to none
of this risk and should be considered safe with re-
spect to asbestos.
(16) Barium. The United States Environmental
Protection Agency (EPA) sets drinking water
standards and has determined that barium is a
health concern at certain levels of exposure. This
inorganic chemical occurs naturally in some
aquifers that serve as sources of ground water. It
is also used in oil and gas drilling muds, auto-
motive paints, bricks, tiles and jet fuels. It gen-
erally gets into drinking water after dissolving
from naturally occurring minerals in the ground.
This chemical may damage the heart and cardio-
vascular system, and is associated with high blood
pressure in laboratory animals such as rats ex-
posed to high levels during their lifetimes. In hu-
mans, EPA believes that effects from barium on
blood pressure should not occur below 2 parts per
million (ppm) in drinking water. EPA has set the
drinking water standard for barium at 2 parts per
million (ppm) to protect against the risk of these
adverse health effects. Drinking water that meets
the EPA standard is associated with little to none
of this risk and is considered safe with respect to
barium.
(17) Cadmium. The United States Environ-
mental Protection Agency (EPA) sets drinking
water standards and has determined that cadmium
is a health concern at certain levels of exposure.
Food and the smoking of tobacco are common
sources of general exposure. This inorganic metal
is a contaminant in the metals used to galvanize
42
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§141.32
pipe. It generally gets into water by corrosion of
galvanized pipes or by improper waste disposal.
This chemical has been shown to damage the kid-
ney in animals such as rats and mice when the
animals are exposed at high levels over their life-
times. Some industrial workers who were exposed
to relatively large amounts of this chemical during
working careers also suffered damage to the kid-
ney. EPA has set the drinking water standard for
cadmium at 0.005 parts per million (ppm) to pro-
tect against the risk of these adverse health effects.
Drinking water that meets the EPA standard is as-
sociated with little to none of this risk and is con-
sidered safe with respect to cadmium.
(18) Chromium. The United States Environ-
mental Protection Agency (EPA) sets drinking
water standards and has determined that chromium
is a health concern at certain levels of exposure.
This inorganic metal occurs naturally in the
ground and is often used in the electroplating of
metals. It generally gets into water from runoff
from old mining operations and improper waste
disposal from plating operations. This chemical
has been shown to damage the kidney, nervous
system, and the circulatory system of laboratory
animals such as rats and mice when the animals
are exposed at high levels. Some humans who
were exposed to high levels of this chemical suf-
fered liver and kidney damage, dermatitis and res-
piratory problems. EPA has set the drinking water
standard for chromium at 0.1 parts per million
(ppm) to protect against the risk of these adverse
health effects. Drinking water that meets the EPA
standard is associated with little to none of this
risk and is considered safe with respect to chro-
mium.
(19) Mercury. The United States Environmental
Protection Agency (EPA) sets drinking water
standards and has determined that mercury is a
health concern at certain levels of exposure. This
inorganic metal is used in electrical equipment and
some water pumps. It usually gets into water as a
result of improper waste disposal. This chemical
has been shown to damage the kidney of labora-
tory animals such as rats when the animals are ex-
posed at high levels over their lifetimes. EPA has
set the drinking water standard for mercury at
0.002 parts per million (ppm) to protect against
the risk of these adverse health effects. Drinking
water that meets the EPA standard is associated
with little to none of this risk and is considered
safe with respect to mercury.
(20) Nitrate. The United States Environmental
Protection Agency (EPA) sets drinking water
standards and has determined that nitrate poses an
acute health concern at certain levels of exposure.
Nitrate is used in fertilizer and is found in sewage
and wastes from human and/or farm animals and
generally gets into drinking water from those ac-
tivities. Excessive levels of nitrate in drinking
water have caused serious illness and sometimes
death in infants under six months of age. The seri-
ous illness in infants is caused because nitrate is
converted to nitrite in the body. Nitrite interferes
with the oxygen carrying capacity of the child's
blood. This is an acute disease in that symptoms
can develop rapidly in infants. In most cases,
health deteriorates over a period of days. Symp-
toms include shortness of breath and blueness of
the skin. Clearly, expert medical advice should be
sought immediately if these symptoms occur. The
purpose of this notice is to encourage parents and
other responsible parties to provide infants with an
alternate source of drinking water. Local and State
health authorities are the best source for informa-
tion concerning alternate sources of drinking water
for infants. EPA has set the drinking water stand-
ard at 10 parts per million (ppm) for nitrate to
protect against the risk of these adverse effects.
EPA has also set a drinking water standard for ni-
trite at 1 ppm. To allow for the fact that the tox-
icity of nitrate and nitrite are additive, EPA has
also established a standard for the sum of nitrate
and nitrite at 10 ppm. Drinking water that meets
the EPA standard is associated with little to none
of this risk and is considered safe with respect to
nitrate.
(21) Nitrite. The United States Environmental
Protection Agency (EPA) sets drinking water
standards and has determined that nitrite poses an
acute health concern at certain levels of exposure.
This inorganic chemical is used in fertilizers and
is found in sewage and wastes from humans and/
or farm animals and generally gets into drinking
water as a result of those activities. While exces-
sive levels of nitrite in drinking water have not
been observed, other sources of nitrite have caused
serious illness and sometimes death in infants
under six months of age. The serious illness in in-
fants is caused because nitrite interferes with the
oxygen carrying capacity of the child's blood. This
is an acute disease in that symptoms can develop
rapidly. However, in most cases, health deterio-
rates over a period of days. Symptoms include
shortness of breath and blueness of the skin.
Clearly, expert medical advice should be sought
immediately if these symptoms occur. The purpose
of this notice is to encourage parents and other re-
sponsible parties to provide infants with an alter-
nate source of drinking water. Local and State
health authorities are the best source for informa-
tion concerning alternate sources of drinking water
for infants. EPA has set the drinking water stand-
ard at 1 part per million (ppm) for nitrite to pro-
tect against the risk of these adverse effects. EPA
has also set a drinking water standard for nitrate
(converted to nitrite in humans) at 10 ppm and for
the sum of nitrate and nitrite at 10 ppm. Drinking
43
-------
§141.32
water that meets the EPA standard is associated
with little to none of this risk and is considered
safe with respect to nitrite.
(22) Selenium. The United States Environmental
Protection Agency (EPA) sets drinking water
standards and has determined that selenium is a
health concern at certain high levels of exposure.
Selenium is also an essential nutrient at low levels
of exposure. This inorganic chemical is found nat-
urally in food and soils and is used in electronics,
photocopy operations, the manufacture of glass,
chemicals, drugs, and as a fungicide and a feed
additive. In humans, exposure to high levels of se-
lenium over a long period of time has resulted in
a number of adverse health effects, including a
loss of feeling and control in the arms and legs.
EPA has set the drinking water standard for sele-
nium at 0.05 parts per million (ppm) to protect
against the risk of these adverse health effects.
Drinking water that meets the EPA standard is as-
sociated with little to none of this risk and is con-
sidered safe with respect to selenium.
(23) Acrylamide. The United States Environ-
mental Protection Agency (EPA) sets drinking
water standards and has determined that acryl-
amide is a health concern at certain levels of ex-
posure. Polymers made from acrylamide are some-
times used to treat water supplies to remove par-
ticulate contaminants. Acrylamide has been shown
to cause cancer in laboratory animals such as rats
and mice when the animals are exposed at high
levels over their lifetimes. Chemicals that cause
cancer in laboratory animals also may increase the
risk of cancer in humans who are exposed over
long periods of time. Sufficiently large doses of
acrylamide are known to cause neurological injury.
EPA has set the drinking water standard for acryl-
amide using a treatment technique to reduce the
risk of cancer or other adverse health effects
which have been observed in laboratory animals.
This treatment technique limits the amount of ac-
rylamide in the polymer and the amount of the
polymer which may be added to drinking water to
remove particulates. Drinking water systems which
comply with this treatment technique have little to
no risk and are considered safe with respect to ac-
rylamide.
(24) Alachlor. The United States Environmental
Protection Agency (EPA) sets drinking water
standards and has determined that alachlor is a
health concern at certain levels of exposure. This
organic chemical is a widely used pesticide. When
soil and climatic conditions are favorable, alachlor
may get into drinking water by runoff into surface
water or by leaching into ground water. This
chemical has been shown to cause cancer in lab-
oratory animals such as rats and mice when the
animals are exposed at high levels over their life-
times. Chemicals that cause cancer in laboratory
animals also may increase the risk of cancer in hu-
mans who are exposed over long periods of time.
EPA has set the drinking water standard for
alachlor at 0.002 parts per million (ppm) to reduce
the risk of cancer or other adverse health effects
which have been observed in laboratory animals.
Drinking water that meets this standard is associ-
ated with little to none of this risk and is consid-
ered safe with respect to alachlor.
(25) Aldicarb. The United States Environmental
Protection Agency (EPA) sets drinking water
standards and has determined that aldicarb is a
health concern at certain levels of exposure.
Aldicarb is a widely used pesticide. Under certain
soil and climatic conditions (e.g., sandy soil and
high rainfall), aldicarb may leach into ground
water after normal agricultural applications to
crops such as potatoes or peanuts or may enter
drinking water supplies as a result of surface run-
off. This chemical has been shown to damage the
nervous system in laboratory animals such as rats
and dogs exposed to high levels. EPA has set the
drinking water standard for aldicarb at 0.003 parts
per million (ppm) to protect against the risk of ad-
verse health effects. Drinking water that meets the
EPA standard is associated with little to none of
this risk and is considered safe with respect to
aldicarb.
(26) Aldicarb sulfoxide. The United States Envi-
ronmental Protection Agency (EPA) sets drinking
water standards and has determined that aldicarb
sulfoxide is a health concern at certain levels of
exposure. Aldicarb is a widely used pesticide.
Aldicarb sulfoxide in ground water is primarily a
breakdown product of aldicarb. Under certain soil
and climatic conditions (e.g., sandy soil and high
rainfall), aldicarb sulfoxide may leach into ground
water after normal agricultural applications to
crops such as potatoes or peanuts or may enter
drinking water supplies as a result of surface run-
off. This chemical has been shown to damage the
nervous system in laboratory animals such as rats
and dogs exposed to high levels. EPA has set the
drinking water standard for aldicarb sulfoxide at
0.004 parts per million (ppm) to protect against
the risk of adverse health effects. Drinking water
that meets the EPA standard is associated with lit-
tle to none of this risk and is considered safe with
respect to aldicarb sulfoxide.
(27) Aldicarb sulfone. The United States Envi-
ronmental Protection Agency (EPA) sets drinking
water standards and has determined that aldicarb
sulfone is a health concern at certain levels of ex-
posure. Aldicarb is a widely used pesticide.
Aldicarb sulfone is formed from the breakdown of
aldicarb and is considered for registration as a pes-
ticide under the name aldoxycarb. Under certain
soil and climatic conditions (e.g., sandy soil and
high rainfall), aldicarb sulfone may leach into
44
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§141.32
ground water after normal agricultural applications
to crops such as potatoes or peanuts or may enter
drinking water supplies as a result of surface run-
off. This chemical has been shown to damage the
nervous system in laboratory animals such as rats
and dogs exposed to high levels. EPA has set the
drinking water standard for aldicarb sulfone at
0.002 parts per million (ppm) to protect against
the risk of adverse health effects. Drinking water
that meets the EPA standard is associated with lit-
tle to none of this risk and is considered safe with
respect to aldicarb sulfone.
(28) Atrazine. The United States Environmental
Protection Agency (EPA) sets drinking water
standards and has determined that atrazine is a
health concern at certain levels of exposure. This
organic chemical is a herbicide. When soil and cli-
matic conditions are favorable, atrazine may get
into drinking water by runoff into surface water or
by leaching into ground water. This chemical has
been shown to affect offspring of rats and the
heart of dogs. EPA has set the drinking water
standard for atrazine at 0.003 parts per million
(ppm) to protect against the risk of these adverse
health effects. Drinking water that meets the EPA
standard is associated with little to none of this
risk and is considered safe with respect to atrazine.
(29) Carbofuran. The United States Environ-
mental Protection Agency (EPA) sets drinking
water standards and has determined that
carbofuran is a health concern at certain levels of
exposure. This organic chemical is a pesticide.
When soil and climatic conditions are favorable,
carbofuran may get into drinking water by runoff
into surface water or by leaching into ground
water. This chemical has been shown to damage
the nervous and reproductive systems of laboratory
animals such as rats and mice exposed at high lev-
els over their lifetimes. Some humans who were
exposed to relatively large amounts of this chemi-
cal during their working careers also suffered
damage to the nervous system. Effects on the
nervous system are generally rapidly reversible.
EPA has set the drinking water standard for
carbofuran at 0.04 parts per million (ppm) to pro-
tect against the risk of these adverse health effects.
Drinking water that meets the EPA standard is as-
sociated with little to none of this risk and is con-
sidered safe with respect to carbofuran.
(30) Chlordane. The United States Environ-
mental Protection Agency (EPA sets drinking
water standards and has determined that chlordane
is a health concern at certain levels of exposure.
This organic chemical is a pesticide used to con-
trol termites. Chlordane is not very mobile in
soils. It usually gets into drinking water after ap-
plication near water supply intakes or wells. This
chemical has been shown to cause cancer in lab-
oratory animals such as rats and mice when the
animals are exposed at high levels over their life-
times. Chemicals that cause cancer in laboratory
animals also may increase the risk of cancer in hu-
mans who are exposed over long periods of time.
EPA has set the drinking water standard for
chlordane at 0.002 parts per million (ppm) to re-
duce the risk of cancer or other adverse health ef-
fects which have been observed in laboratory ani-
mals. Drinking water that meets the EPA standard
is associated with little to none of this risk and is
considered safe with respect to chlordane.
(31) Dibromochloropropane (DBCP). The Unit-
ed States Environmental Protection Agency (EPA)
sets drinking water standards and has determined
that DBCP is a health concern at certain levels of
exposure. This organic chemical was once a popu-
lar pesticide. When soil and climatic conditions
are favorable, dibromochloropropane may get into
drinking water by runoff into surface water or by
leaching into ground water. This chemical has
been shown to cause cancer in laboratory animals
such as rats and mice when the animals are ex-
posed at high levels over their lifetimes. Chemi-
cals that cause cancer in laboratory animals also
may increase the risk of cancer in humans who are
exposed over long periods of time. EPA has set
the drinking water standard for DBCP at 0.0002
parts per million (ppm) to reduce the risk of can-
cer or other adverse health effects which have
been observed in laboratory animals. Drinking
water that meets the EPA standard is associated
with little to none of this risk and is considered
safe with respect to DBCP.
(32) o-Dichlorobenzene. The United States En-
vironmental Protection Agency (EPA) sets drink-
ing water standards and has determined that o-
dichlorobenzene is a health concern at certain lev-
els of exposure. This organic chemical is used as
a solvent in the production of pesticides and dyes.
It generally gets into water by improper waste dis-
posal. This chemical has been shown to damage
the liver, kidney and the blood cells of laboratory
animals such as rats and mice exposed to high lev-
els during their lifetimes. Some industrial workers
who were exposed to relatively large amounts of
this chemical during working careers also suffered
damage to the liver, nervous system, and cir-
culatory system. EPA has set the drinking water
standard for o-dichlorobenzene at 0.6 parts per
million (ppm) to protect against the risk of these
adverse health effects. Drinking water that meets
the EPA standard is associated with little to none
of this risk and is considered safe with respect to
o-dichlorobenzene.
(33) cis-l,2-Dichloroethylene. The United States
Environmental Protection Agency (EPA) estab-
lishes drinking water standards and has determined
that cis-l,2-dichloroethylene is a health concern at
certain levels of exposure. This organic chemical
45
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§141.32
is used as a solvent and intermediate in chemical
production. It generally gets into water by im-
proper waste disposal. This chemical has been
shown to damage the liver, nervous system, and
circulatory system of laboratory animals such as
rats and mice when exposed at high levels over
their lifetimes. Some humans who were exposed to
relatively large amounts of this chemical also suf-
fered damage to the nervous system. EPA has set
the drinking water standard for cis-1,2-
dichloroethylene at 0.07 parts per million (ppm) to
protect against the risk of these adverse health ef-
fects. Drinking water that meets the EPA standard
is associated with little to none of this risk and is
considered safe with respect to cis-1,2-
dichloroethylene.
(34) trans- 1,2-Dichloroethylene. The United
States Environmental Protection Agency (EPA) es-
tablishes drinking water standards and has deter-
mined that trans-1,2-dichloroethylene is a health
concern at certain levels of exposure. This organic
chemical is used as a solvent and intermediate in
chemical production. It generally gets into water
by improper waste disposal. This chemical has
been shown to damage the liver, nervous system,
and the circulatory system of laboratory animals
such as rats and mice when exposed at high levels
over their lifetimes. Some humans who were ex-
posed to relatively large amounts of this chemical
also suffered damage to the nervous system. EPA
has set drinking water standard for trans-1,2-
dichloroethylene at 0.1 parts per million (ppm) to
protect against the risk of these adverse health ef-
fects. Drinking water that meets the EPA standard
is associated with little to none of this risk and is
considered safe with respect to trans-1,2-
dichloroethylene.
(35) 1,2-Dichloropropane. The United States
Environmental Protection Agency (EPA) sets
drinking water standards and has determined that
1,2-dichloropropane is a health concern at certain
levels of exposure. This organic chemical is used
as a solvent and pesticide. When soil and climatic
conditions are favorable, 1,2-dichloropropane may
get into drinking water by runoff into surface
water or by leaching into ground water. It may
also get into drinking water through improper
waste disposal. This chemical has been shown to
cause cancer in laboratory animals such as rats
and mice when the animals are exposed at high
levels over their lifetimes. Chemicals that cause
cancer in laboratory animals also may increase the
risk of cancer in humans who are exposed over
long periods of time. EPA has set the drinking
water standard for 1,2-dichloropropane at 0.005
parts per million (ppm) to reduce the risk of can-
cer or other adverse health effects which have
been observed in laboratory animals. Drinking
water that meets the EPA standard is associated
with little to none of this risk and is considered
safe with respect to 1,2-dichloropropane.
(36) 2,4-D. The United States Environmental
Protection Agency (EPA) sets drinking water
standards and has determined that 2,4-D is a
health concern at certain levels of exposure. This
organic chemical is used as a herbicide and to
control algae in reservoirs. When soil and climatic
conditions are favorable, 2,4-D may get into
drinking water by runoff into surface water or by
leaching into ground water. This chemical has
been shown to damage the liver and kidney of lab-
oratory animals such as rats exposed at high levels
during their lifetimes. Some humans who were ex-
posed to relatively large amounts of this chemical
also suffered damage to the nervous system. EPA
has set the drinking water standard for 2,4-D at
0.07 parts per million (ppm) to protect against the
risk of these adverse health effects. Drinking water
that meets the EPA standard is associated with lit-
tle to none of this risk and is considered safe with
respect to 2,4-D.
(37) Epichlorohydrin. The United States Envi-
ronmental Protection Agency (EPA) sets drinking
water standards and has determined that
epichlorohydrin is a health concern at certain lev-
els of exposure. Polymers made from
epichlorohydrin are sometimes used in the treat-
ment of water supplies as a flocculent to remove
particulates. Epichlorohydrin generally gets into
drinking water by improper use of these polymers.
This chemical has been shown to cause cancer in
laboratory animals such as rats and mice when the
animals are exposed at high levels over their life-
times. Chemicals that cause cancer in laboratory
animals also may increase the risk of cancer in hu-
mans who are exposed over long periods of time.
EPA has set the drinking water standard for
epichlorohydrin using a treatment technique to re-
duce the risk of cancer or other adverse health ef-
fects which have been observed in laboratory ani-
mals. This treatment technique limits the amount
of epichlorohydrin in the polymer and the amount
of the polymer which may be added to drinking
water as a flocculent to remove particulates.
Drinking water systems which comply with this
treatment technique have little to no risk and are
considered safe with respect to epichlorohydrin.
(38) Ethylbenzene. The United States Environ-
mental Protection Agency (EPA) sets drinking
water standards and has determined ethylbenzene
is a health concern at certain levels of exposure.
This organic chemical is a major component of
gasoline. It generally gets into water by improper
waste disposal or leaking gasoline tanks. This
chemical has been shown to damage the kidney,
liver, and nervous system of laboratory animals
such as rats exposed to high levels during their
lifetimes. EPA has set the drinking water standard
46
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§141.32
for ethylbenzene at 0.7 part per million (ppm) to
protect against the risk of these adverse health ef-
fects. Drinking water that meets the EPA standard
is associated with little to none of this risk and is
considered safe with respect to ethylbenzene.
(39) Ethylene dibromide (EDB). The United
States Environmental Protection Agency (EPA)
sets drinking water standards and has determined
that EDB is a health concern at certain levels of
exposure. This organic chemical was once a popu-
lar pesticide. When soil and climatic conditions
are favorable, EDB may get into drinking water by
runoff into surface water or by leaching into
ground water. This chemical has been shown to
cause cancer in laboratory animals such as rats
and mice when the animals are exposed at high
levels over their lifetimes. Chemicals that cause
cancer in laboratory animals also may increase the
risk of cancer in humans who are exposed over
long periods of time. EPA has set the drinking
water standard for EDB at 0.00005 part per mil-
lion (ppm) to reduce the risk of cancer or other
adverse health effects which have been observed
in laboratory animals. Drinking water that meets
this standard is associated with little to none of
this risk and is considered safe with respect to
EDB.
(40) Heptachlor. The United States Environ-
mental Protection Agency (EPA) sets drinking
water standards and has determined that heptachlor
is a health concern at certain levels of exposure.
This organic chemical was once a popular pes-
ticide. When soil and climatic conditions are fa-
vorable, heptachlor may get into drinking water by
runoff into surface water or by leaching into
ground water. This chemical has been shown to
cause cancer in laboratory animals such as rats
and mice when the animals are exposed at high
levels over their lifetimes. Chemicals that cause
cancer in laboratory animals also may increase the
risk of cancer in humans who are exposed over
long periods of time. EPA has set the drinking
water standards for heptachlor at 0.0004 part per
million (ppm) to reduce the risk of cancer or other
adverse health effects which have been observed
in laboratory animals. Drinking water that meets
this standard is associated with little to none of
this risk and is considered safe with respect to
heptachlor.
(41) Heptachlor epoxide. The United States En-
vironmental Protection Agency (EPA) sets drink-
ing water standards and has determined that hepta-
chlor epoxide is a health concern at certain levels
of exposure. This organic chemical was once a
popular pesticide. When soil and climatic condi-
tions are favorable, heptachlor expoxide may get
into drinking water by runoff into surface water or
by leaching into ground water. This chemical has
been shown to cause cancer in laboratory animals
such as rats and mice when the animals are ex-
posed at high levels over their lifetimes. Chemi-
cals that cause cancer in laboratory animals also
may increase the risk of cancer in humans who are
exposed over long periods of time. EPA has set
the drinking water standards for heptachlor epox-
ide at 0.0002 part per million (ppm) to reduce the
risk of cancer or other adverse health effects
which have been observed in laboratory animals.
Drinking water that meets this standard is associ-
ated with little to none of this risk and is consid-
ered safe with respect to heptachlor epoxide.
(42) Lindane. The United States Environmental
Protection Agency (EPA) sets drinking water
standards and has determined that lindane is a
health concern at certain levels of exposure. This
organic chemical is used as a pesticide. When soil
and climatic conditions are favorable, lindane may
get into drinking water by runoff into surface
water or by leaching into ground water. This
chemical has been shown to damage the liver, kid-
ney, nervous system, and immune system of lab-
oratory animals such as rats, mice and dogs ex-
posed at high levels during their lifetimes. Some
humans who were exposed to relatively large
amounts of this chemical also suffered damage to
the nervous system and circulatory system. EPA
has established the drinking water standard for lin-
dane at 0.0002 part per million (ppm) to protect
against the risk of these adverse health effects.
Drinking water that meets the EPA standard is as-
sociated with little to none of this risk and is con-
sidered safe with respect to lindane.
(43) Methoxychlor. The United States Environ-
mental Protection Agency (EPA) sets drinking
water standards and has determined that
methoxychlor is a health concern at certain levels
of exposure. This organic chemical is used as a
pesticide. When soil and climatic conditions are
favorable, methoxychlor may get into drinking
water by runoff into surface water or by leaching
into ground water. This chemical has been shown
to damage the liver, kidney, nervous system, and
reproductive system of laboratory animals such as
rats exposed at high levels during their lifetimes.
It has also been shown to produce growth retarda-
tion in rats. EPA has set the drinking water stand-
ard for methoxychlor at 0.04 part per million
(ppm) to protect against the risk of these adverse
health effects. Drinking water that meets the EPA
standard is associated with little to none of this
risk and is considered safe with respect to
methoxychlor.
(44) Monochlorobenzene. The United States En-
vironmental Protection Agency (EPA) sets drink-
ing water standards and has determined that
monochlorobenzene is a health concern at certain
levels of exposure. This organic chemical is used
47
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§141.32
as a solvent. It generally gets into water by im-
proper waste disposal. This chemical has been
shown to damage the liver, kidney and nervous
system of laboratory animals such as rats and mice
exposed to high levels during their lifetimes. EPA
has set the drinking water standard for
monochlorobenzene at 0.1 part per million (ppm)
to protect against the risk of these adverse health
effects. Drinking water that meets the EPA stand-
ard is associated with little to none of this risk and
is considered safe with respect to
monochlorobenzene.
(45) Polychlorinated biphenyls (PCBs). The
United States Environmental Protection Agency
(EPA) sets drinking water standards and has deter-
mined that polychlorinated biphenyls (PCBs) are a
health concern at certain levels of exposure. These
organic chemicals were once widely used in elec-
trical transformers and other industrial equipment.
They generally get into drinking water by im-
proper waste disposal or leaking electrical indus-
trial equipment. This chemical has been shown to
cause cancer in laboratory animals such as rats
and mice when the animals are exposed at high
levels over their lifetimes. Chemicals that cause
cancer in laboratory animals also may increase the
risk of cancer in humans who are exposed over
long periods of time. EPA has set the drinking
water standard for PCBs at 0.0005 part per million
(ppm) to reduce the risk of cancer or other adverse
health effects which have been observed in labora-
tory animals. Drinking water that meets this stand-
ard is associated with little to none of this risk and
is considered safe with respect to PCBs.
(46) p'entachlorophenol. The United States En-
vironmental Protection Agency (EPA) sets drink-
ing water standards and has determined that
pentachlorophenol is a health concern at certain
levels of exposure. This organic chemical is used
as a wood preservative, herbicide, disinfectant, and
defoliant. It generally gets into drinking water by
runoff into surface water or leaching into ground
water. This chemical has been shown to produce
adverse reproductive effects and to damage the
liver and kidneys of laboratory animals such as
rats exposed to high levels during their lifetimes.
Some humans who were exposed to relatively
large amounts of this chemical also suffered dam-
age to the liver and kidneys. This chemical has
been shown to cause cancer in laboratory animals
such as rats and mice when the animals are ex-
posed to high levels over their lifetimes. Chemi-
cals that cause cancer in laboratory animals also
may increase the risk of cancer in humans who are
exposed over long periods of time. EPA has set
the drinking water standard for pentachlorophenol
at 0.001 parts per million (ppm) to protect against
the risk of cancer or other adverse health effects.
Drinking water that meets the EPA standard is as-
sociated with little to none of this risk and is con-
sidered safe with respect to pentachlorophenol.
(47) Styrene. The United States Environmental
Protection Agency (EPA) sets drinking water
standards and has determined that styrene is a
health concern at certain levels of exposure. This
organic chemical is commonly used to make plas-
tics and is sometimes a component of resins used
for drinking water treatment. Styrene may get into
drinking water from improper waste disposal. This
chemical has been shown to damage the liver and
nervous system in laboratory animals when ex-
posed at high levels during their lifetimes. EPA
has set the drinking water standard for styrene at
0.1 part per million (ppm) to protect against the
risk of these adverse health effects. Drinking water
that meets the EPA standard is associated with lit-
tle to none of this risk and is considered safe with
respect to styrene.
(48) Tetrachloroethylene. The United States En-
vironmental Protection Agency (EPA) sets drink-
ing water standards and has determined that
tetrachloroethylene is a health concern at certain
levels of exposure. This organic chemical has been
a popular solvent, particularly for dry cleaning. It
generally gets into drinking water by improper
waste disposal. This chemical has been shown to
cause cancer in laboratory animals such as rats
and mice when the animals are exposed at high
levels over their lifetimes. Chemicals that cause
cancer in laboratory animals also may increase the
risk of cancer in humans who are exposed over
long periods of time. EPA has set the drinking
water standard for tetrachloroethylene at 0.005 part
per million (ppm) to reduce the risk of cancer or
other adverse health effects which have been ob-
served in laboratory animals. Drinking water that
meets this standard is associated with little to none
of this risk and is considered safe with respect to
tetrachloroethylene.
(49) Toluene. The United States Environmental
Protection Agency (EPA) sets drinking water
standards and has determined that toluene is a
health concern at certain levels of exposure. This
organic chemical is used as a solvent and in the
manufacture of gasoline for airplanes. It generally
gets into water by improper waste disposal or
leaking underground storage tanks. This chemical
has been shown to damage the kidney, nervous
system, and circulatory system of laboratory ani-
mals such as rats and mice exposed to high levels
during their lifetimes. Some industrial workers
who were exposed to relatively large amounts of
this chemical during working careers also suffered
damage to the liver, kidney and nervous system.
EPA has set the drinking water standard for tolu-
ene at 1 part per million (ppm) to protect against
the risk of adverse health effects. Drinking water
48
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§141.32
that meets the EPA standard is associated with lit-
tle to none of this risk and is considered safe with
respect to toluene.
(50) Toxaphene. The United States Environ-
mental Protection Agency (EPA) sets drinking
water standards and has determined that toxaphene
is a health concern at certain levels of exposure.
This organic chemical was once a pesticide widely
used on cotton, corn, soybeans, pineapples and
other crops. When soil and climatic conditions are
favorable, toxaphene may get into drinking water
by runoff into surface water or by leaching into
ground water. This chemical has been shown to
cause cancer in laboratory animals such as rats
and mice when the animals are exposed at high
levels over their lifetimes. Chemicals that cause
cancer in laboratory animals also may increase the
risk of cancer in humans who are exposed over
long periods of time. EPA has set the drinking
water standard for toxaphene at 0.003 part per mil-
lion (ppm) to reduce the risk of cancer or other
adverse health effects which have been observed
in laboratory animals. Drinking water that meets
this standard is associated with little to none of
this risk and is considered safe with respect to
toxaphene.
(51) 2,4,5-TP. The United States Environmental
Protection Agency (EPA) sets drinking water
standards and has determined that 2,4,5-TP is a
health concern at certain levels of exposure. This
organic chemical is used as a herbicide. When soil
and climatic conditions are favorable, 2,4,5-TP
may get into drinking water by runoff into surface
water or by leaching into ground water. This
chemical has been shown to damage the liver and
kidney of laboratory animals such as rats and dogs
exposed to high levels during their lifetimes. Some
industrial workers who were exposed to relatively
large amounts of this chemical during working ca-
reers also suffered damage to the nervous system.
EPA has set the drinking water standard for 2,4,5-
TP at 0.05 part per million (ppm) to protect
against the risk of these adverse health effects.
Drinking water that meets the EPA standard is as-
sociated with little to none of this risk and is con-
sidered safe with respect to 2,4,5-TP.
(52) Xylenes. The United States Environmental
Protection Agency (EPA) sets drinking water
standards and has determined that xylene is a
health concern at certain levels of exposure. This
organic chemical is used in the manufacture of
gasoline for airplanes and as a solvent for pes-
ticides, and as a cleaner and degreaser of metals.
It usually gets into water by improper waste dis-
posal. This chemical has been shown to damage
the liver, kidney and nervous system of laboratory
animals such as rats and dogs exposed to high lev-
els during their lifetimes. Some humans who were
exposed to relatively large amounts of this chemi-
cal also suffered damage to the nervous system.
EPA has set the drinking water standard for xy-
lene at 10 parts per million (ppm) to protect
against the risk of these adverse health effects.
Drinking water that meets the EPA standard is as-
sociated with little to none of this risk and is con-
sidered safe with respect to xylene.
(53) Antimony. The United States Environ-
mental Protection Agency (EPA) sets drinking
water standards and has determined that antimony
is a health concern at certain levels of exposure.
This inorganic chemical occurs naturally in soils,
ground water and surface waters and is often used
in the flame retardant industry. It is also used in
ceramics, glass, batteries, fireworks and explo-
sives. It may get into drinking water through natu-
ral weathering of rock, industrial production, mu-
nicipal waste disposal or manufacturing processes.
This chemical has been shown to decrease longev-
ity, and altered blood levels of cholesterol and glu-
cose in laboratory animals such as rats exposed to
high levels during their lifetimes. EPA has set the
drinking water standard for antimony at 0.006
parts per million (ppm) to protect against the risk
of these adverse health effects. Drinking water
which meets the EPA standard is associated with
little to none of this risk and should be considered
safe with respect to antimony.
(54) Beryllium. The United States Environ-
mental Protection Agency (EPA) sets drinking
water standards and has determined that beryllium
is a health concern at certain levels of exposure.
This inorganic metal occurs naturally in soils,
ground water and surface waters and is often used
in electrical equipment and electrical components.
It generally gets into water from runoff from min-
ing operations, discharge from processing plants
and improper waste disposal. Beryllium com-
pounds have been associated with damage to the
bones and lungs and induction of cancer in labora-
tory animals such as rats and mice when the ani-
mals are exposed at high levels over their life-
times. There is limited evidence to suggest that be-
ryllium may pose a cancer risk via drinking water
exposure. Therefore, EPA based the health assess-
ment on noncancer effects with an extra uncer-
tainty factor to account for possible carcino-
genicity. Chemicals that cause cancer in laboratory
animals also may increase the risk of cancer in hu-
mans who are exposed over long periods of time.
EPA has set the drinking water standard for beryl-
lium at 0.004 part per million (ppm) to protect
against the risk of these adverse health effects.
Drinking water which meets the EPA standard is
associated with little to none of this risk and
should be considered safe with respect to beryl-
lium.
(55) Cyanide. The United States Environmental
Protection Agency (EPA) sets drinking water
49
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§141.32
standards and has determined that cyanide is a
health concern at certain levels of exposure. This
inorganic chemical is used in electroplating, steel
processing, plastics, synthetic fabrics and fertilizer
products. It usually gets into water as a result of
improper waste disposal. This chemical has been
shown to damage the spleen, brain and liver of hu-
mans fatally poisoned with cyanide. EPA has set
the drinking water standard for cyanide at 0.2
parts per million (ppm) to protect against the risk
of these adverse health effects. Drinking water
which meets the EPA standard is associated with
little to none of this risk and should be considered
safe with respect to cyanide.
(56) [Reserved]
(57) Thallium. The United States Environmental
Protection Agency (EPA) sets drinking water
standards and has determined that thallium is a
health concern at certain high levels of exposure.
This inorganic metal is found naturally in soils
and is used in electronics, Pharmaceuticals, and
the manufacture of glass and alloys. This chemical
has been shown to damage the kidney, liver, brain
and intestines of laboratory animals when the ani-
mals are exposed at high levels over their life-
times. EPA has set the drinking water standard for
thallium at 0.002 parts per million (ppm) to pro-
tect against the risk of these adverse health effects.
Drinking water which meets the EPA standard is
associated with little to none of this risk and
should be considered safe with respect to thallium.
(58) Benzofajpyrene. The United States Envi-
ronmental Protection Agency (EPA) sets drinking
water standards and has determined that
benzo[a]pyrene is a health concern at certain lev-
els of exposure. Cigarette smoke and charbroiled
meats are common source of general exposure.
The major source of benzo[a]pyrene in drinking
water is the leaching from coal tar lining and
sealants in water storage tanks. This chemical has
been shown to cause cancer in animals such as
rats and mice when the animals are exposed at
high levels. EPA has set the drinking water stand-
ard for benzo[a]pyrene at 0.0002 parts per million
(ppm) to protect against the risk of cancer. Drink-
ing water which meets the EPA standard is associ-
ated with little to none of this risk and should be
considered safe with respect to benzo[a]pyrene.
(59) Dalapon. The United States Environmental
Protection Agency (EPA) sets drinking water
standards and has determined that dalapon is a
health concern at certain levels of exposure. This
organic chemical is a widely used herbicide. It
may get into drinking water after application to
control grasses in crops, drainage ditches and
along railroads. This chemical has been shown to
cause damage to the kidney and liver in laboratory
animals when the animals are exposed to high lev-
els over their lifetimes. EPA has set the drinking
water standard for dalapon at 0.2 parts per million
(ppm) to protect against the risk of these adverse
health effects. Drinking water which meets the
EPA standard is associated with little to none of
this risk and should be considered safe with re-
spect to dalapon.
(60) Dichloromethane. The United States Envi-
ronmental Protection Agency (EPA) sets drinking
water standards and has determined that
dichloromethane (methylene chloride) is a health
concern at certain levels of exposure. This organic
chemical is a widely used solvent. It is used in the
manufacture of paint remover, as a metal
degreaser and as an aerosol propellant. It generally
gets into drinking water after improper discharge
of waste disposal. This chemical has been shown
to cause cancer in laboratory animals such as rats
and mice when the animals are exposed at high
levels over their lifetimes. Chemicals that cause
cancer in laboratory animals also may increase the
risk of cancer in humans who are exposed over
long periods of time. EPA has set the drinking
water standard for dichloromethane at 0.005 parts
per million (ppm) to reduce the risk of cancer or
other adverse health effects which have been ob-
served in laboratory animals. Drinking water
which meets this standard is associated with little
to none of this risk and should be considered safe
with respect to dichloromethane.
(61) Di (2-ethylhexyl)adipate. The United States
Environmental Protection Agency (EPA) sets
drinking water standards and has determined that
di(2-ethylhexyl)adipate is a health concern at cer-
tain levels of exposure. Di(2-ethylhexyl)adipate is
a widely used plasticizer in a variety of products,
including synthetic rubber, food packaging mate-
rials and cosmetics. It may get into drinking water
after improper waste disposal. This chemical has
been shown to damage liver and testes in labora-
tory animals such as rats and mice exposed to
high levels. EPA has set the drinking water stand-
ard for di(2-ethylhexyl)adipate at 0.4 parts per mil-
lion (ppm) to protect against the risk of adverse
health effects. Drinking water which meets the
EPA standards is associated with little to none of
this risk and should be considered safe with re-
spect to di(2-ethylhexyl)adipate.
(62) Di(2-ethylhexyl)phthalate. The United
States Environmental Protection Agency (EPA)
sets drinking water standards and has determined
that di(2-ethylhexyl)phthalate is a health concern
at certain levels of exposure. Di(2-
ethylhexyl)phthalate is a widely used plasticizer,
which is primarily used in the production of poly-
vinyl chloride (PVC) resins. It may get into drink-
ing water after improper waste disposal. This
chemical has been shown to cause cancer in lab-
oratory animals such as rats and mice exposed to
high levels over their lifetimes. EPA has set the
50
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§141.32
drinking water standard for di(2-
ethylhexyl)phthalate at 0.006 parts per million
(ppm) to reduce the risk of cancer or other adverse
health effects which have been observed in labora-
tory animals. Drinking water which meets the EPA
standard is associated with little to none of this
risk and should be considered safe with respect to
di(2-ethylhexyl)phthalate.
(63) Dinoseb. The United States Environmental
Protection Agency (EPA) sets drinking water
standards and has determined that dinoseb is a
health concern at certain levels of exposure.
Dinoseb is a widely used pesticide and generally
gets into drinking water after application on or-
chards, vineyards and other crops. This chemical
has been shown to damage the thyroid and repro-
ductive organs in laboratory animals such as rats
exposed to high levels. EPA has set the drinking
water standard for dinoseb at 0.007 parts per mil-
lion (ppm) to protect against the risk of adverse
health effects. Drinking water which meets the
EPA standard is associated with little to none of
this risk and should be considered safe with re-
spect to dinoseb.
(64) Diquat. The United States Environmental
Protection Agency (EPA) sets drinking water
standards and has determined that diquat is a
health concern at certain levels of exposure. This
organic chemical is a herbicide used to control ter-
restrial and aquatic weeds. It may get into drinking
water by runoff into surface water. This chemical
has been shown to damage the liver, kidney and
gastrointestinal tract and causes cataract formation
in laboratory animals such as dogs and rats ex-
posed at high levels over their lifetimes. EPA has
set the drinking water standard for diquat at 0.02
parts per million (ppm) to protect against the risk
of these adverse health effects. Drinking water
which meets the EPA standard is associated with
little to none of this risk and should be considered
safe with respect to diquat.
(65) Endothall. The United States Environ-
mental Protection Agency (EPA) has determined
that endothall is a health concern at certain levels
of exposure. This organic chemical is a herbicide
used to control terrestrial and aquatic weeds. It
may get into water by runoff into surface water.
This chemical has been shown to damage the
liver, kidney, gastrointestinal tract and reproduc-
tive system of laboratory animals such as rats and
mice exposed at high levels over their lifetimes.
EPA has set the drinking water standard for
endothall at 0.1 parts per million (ppm) to protect
against the risk of these adverse health effects.
Drinking water which meets the EPA standard is
associated with little to none of this risk and
should be considered safe with respect to
endothall.
(66) Endrin. The United States Environmental
Protection Agency (EPA) sets drinking water
standards and has determined that endrin is a
health concern at certain levels of exposure. This
organic chemical is a pesticide no longer reg-
istered for use in the United States. However, this
chemical is persistent in treated soils and accumu-
lates in sediments and aquatic and terrestrial biota.
This chemical has been shown to cause damage to
the liver, kidney and heart in laboratory animals
such as rats and mice when the animals are ex-
posed at high levels over their lifetimes. EPA has
set the drinking water standard for endrin at 0.002
parts per million (ppm) to protect against the risk
of these adverse health effects which have been
observed in laboratory animals. Drinking water
that meets the EPA standard is associated with lit-
tle to none of this risk and should be considered
safe with respect to endrin.
(67) Glyphosate. The United States Environ-
mental Protection Agency (EPA) sets drinking
water standards and has determined that
glyphosate is a health concern at certain levels of
exposure. This organic chemical is a herbicide
used to control grasses and weeds. It may get into
drinking water by runoff into surface water. This
chemical has been shown to cause damage to the
liver and kidneys in laboratory animals such as
rats and mice when the animals are exposed at
high levels over their lifetimes. EPA has set the
drinking water standard for glyphosate at 0.7 parts
per million (ppm) to protect against the risk of
these adverse health effects. Drinking water which
meets the EPA standard is associated with little to
none of this risk and should be considered safe
with respect to glyphosate.
(68) Hexachlorobenzene. The United States En-
vironmental Protection Agency (EPA) sets drink-
ing water standards and has determined that
hexachlorobenzene is a health concern at certain
levels of exposure. This organic chemical is pro-
duced as an impurity in the manufacture of certain
solvents and pesticides. This chemical has been
shown to cause cancer in laboratory animals such
as rats and mice when the animals are exposed to
high levels during their lifetimes. Chemicals that
cause cancer in laboratory animals also may in-
crease the risk of cancer in humans who are ex-
posed over long periods of time. EPA has set the
drinking water standard for hexachlorobenzene at
0.001 parts per million (ppm) to protect against
the risk of cancer and other adverse health effects.
Drinking water which meets the EPA standard is
associated with little to none of this risk and
should be considered safe with respect to
hexachlorobenzene.
51
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§141.32
(69) Hexachlorocyclopentadiene. The United
States Environmental Protection Agency (EPA) es-
tablishes drinking water standards and has deter-
mined that hexachlorocyclopentadiene is a health
concern at certain levels of exposure. This organic
chemical is used as an intermediate in the manu-
facture of pesticides and flame retardants. It may
get into water by discharge from production facili-
ties. This chemical has been shown to damage the
kidney and the stomach of laboratory animals
when exposed at high levels over their lifetimes.
EPA has set the drinking water standard for
hexachlorocyclopentadiene at 0.05 parts per mil-
lion (ppm) to protect against the risk of these ad-
verse health effects. Drinking water which meets
the EPA standard is associated with little to none
of this risk and should be considered safe with re-
spect to hexachlorocyclopentadiene.
(70) Oxamyl. The United States Environmental
Protection Agency (EPA) establishes drinking
water standards and has determined that oxamyl is
a health concern at certain levels of exposure. This
organic chemical is used as a pesticide for the
control of insects and other pests. It may get into
drinking water by runoff into surface water or
leaching into ground water. This chemical has
been shown to damage the kidneys of laboratory
animals such as rats when exposed at high levels
over their lifetimes. EPA has set the drinking
water standard for oxamyl at 0.2 parts per million
(ppm) to protect against the risk of these adverse
health effects. Drinking water which meets the
EPA standard is associated with little to none of
this risk and should be considered safe with re-
spect to oxamyl.
(71) Picloram. The United States Environmental
Protection Agency (EPA) sets drinking water
standards and has determined that picloram is a
health concern at certain levels of exposure. This
organic chemical is used as a pesticide for broad-
leaf weed control. It may get into drinking water
by runoff into surface water or leaching into
ground water as a result of pesticide application
and improper waste disposal. This chemical has
been shown to cause damage to the kidneys and
liver in laboratory animals such as rats when the
animals are exposed at high levels over their life-
times. EPA has set the drinking water standard for
picloram at 0.5 parts per million (ppm) to protect
against the risk of these adverse health effects.
Drinking water which meets the EPA standard is
associated with little to none of this risk and
should be considered safe with respect to
picloram.
(72) Simazine. The United States Environmental
Protection Agency (EPA) sets drinking water
standards and has determined that simazine is a
health concern at certain levels of exposure. This
organic chemical is a herbicide used to control an-
nual grasses and broadleaf weeds. It may leach
into ground water or runs off into surface water
after application. This chemical may cause cancer
in laboratory animals such as rats and mice ex-
posed at high levels during their lifetimes. Chemi-
cals that cause cancer in laboratory animals also
may increase the risk of cancer in humans who are
exposed over long periods of time. EPA has set
the drinking water standard for simazine at 0.004
parts per million (ppm) to reduce the risk of can-
cer or other adverse health effects. Drinking water
which meets the EPA standard is associated with
little to none of this risk and should be considered
safe with respect to simazine.
(73) 1,2,4-Trichlorobenzene. The United States
Environmental Protection Agency (EPA) sets
drinking water standards and has determined that
1,2,4-trichlorobenzene is a health concern at cer-
tain levels of exposure. This organic chemical is
used as a dye carrier and as a precursor in herbi-
cide manufacture. It generally gets into drinking
water by discharges from industrial activities. This
chemical has been shown to cause damage to sev-
eral organs, including the adrenal glands. EPA has
set the drinking water standard for 1,2,4-
trichlorobenzene at 0.07 parts per million (ppm) to
protect against the risk of these adverse health ef-
fects. Drinking water which meets the EPA stand-
ard is associated with little to none of this risk and
should be considered safe with respect to 1,2,4-
trichlorobenzene.
(74) 1,1,2-Trichloroethane. The United States
Environmental Protection Agency (EPA) sets
drinking water standards and has determined 1,1,2-
trichloroethane is a health concern at certain levels
of exposure. This organic chemical is an inter-
mediate in the production of 1,1-dichloroethylene.
It generally gets into water by industrial discharge
of wastes. This chemical has been shown to dam-
age the kidney and liver of laboratory animals
such as rats exposed to high levels during their
lifetimes. EPA has set the drinking water standard
for 1,1,2-trichloroethane at 0.005 parts per million
(ppm) to protect against the risk of these adverse
health effects. Drinking water which meets the
EPA standard is associated with little to none of
this risk and should be considered safe with re-
spect to 1,1,2-trichloroethane.
(75) 2,3,7,8-TCDD (Dioxin). The United States
Environmental Protection Agency (EPA) sets
drinking water standards and has determined that
dioxin is a health concern at certain levels of ex-
posure. This organic chemical is an impurity in the
production of some pesticides. It may get into
drinking water by industrial discharge of wastes.
This chemical has been shown to cause cancer in
laboratory animals such as rats and mice when the
animals are exposed at high levels over their life-
times. Chemicals that cause cancer in laboratory
52
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§141.35
animals also may increase the risk of cancer in hu-
mans who are exposed over long periods of time.
EPA has set the drinking water standard for dioxin
at 0.00000003 parts per million (ppm) to reduce
the risk of cancer or other adverse health effects
which have been observed in laboratory animals.
Drinking water which meets this standard is asso-
ciated with little to none of this risk and should
be considered safe with respect to dioxin.
(f) Public notices for fluoride. Notice of viola-
tions of the maximum contaminant level for fluo-
ride, notices of variances and exemptions from the
maximum contaminant level for fluoride, and no-
tices of failure to comply with variance and ex-
emption schedules for the maximum contaminant
level for fluoride shall consist of the public notice
prescribed in § 143.5(b), plus a description of any
steps which the system is taking to come into
compliance.
(g) Public notification by the State. The State
may give notice to the public required by this sec-
tion on behalf of the owner or operator of the pub-
lic water system if the State complies with the re-
quirements of this section. However, the owner or
operator of the public water system remains le-
gally responsible for ensuring that the require-
ments of this section are met.
[52 FR 41546, Oct. 28, 1987, as amended at 54 FR
15188, Apr. 17, 1989; 54 FR 27527, 27566, June 29,
1989; 55 FR 25064, June 19, 1990; 56 FR 3587, Jan. 30,
1991; 56 FR 26548, June 7, 1991; 56 FR 30279, July 1,
1991; 57 FR 31843, July 17, 1992; 59 FR 34323, July
1, 1994; 60 FR 33932, June 29, 1995]
§141.33 Record maintenance.
Any owner or operator of a public water system
subject to the provisions of this part shall retain on
its premises or at a convenient location near its
premises the following records:
(a) Records of bacteriological analyses made
pursuant to this part shall be kept for not less than
5 years. Records of chemical analyses made pursu-
ant to this part shall be kept for not less than 10
years. Actual laboratory reports may be kept, or
data may be transferred to tabular summaries, pro-
vided that the following information is included:
(1) The date, place, and time of sampling, and
the name of the person who collected the sample;
(2) Identification of the sample as to whether it
was a routine distribution system sample, check
sample, raw or process water sample or other spe-
cial purpose sample;
(3) Date of analysis;
(4) Laboratory and person responsible for per-
forming analysis;
(5) The analytical technique/method used; and
(6) The results of the analysis.
(b) Records of action taken by the system to
correct violations of primary drinking water regu-
lations shall be kept for a period not less than 3
years after the last action taken with respect to the
particular violation involved.
(c) Copies of any written reports, summaries or
communications relating to sanitary surveys of the
system conducted by the system itself, by a private
consultant, or by any local, State or Federal agen-
cy, shall be kept for a period not less than 10
years after completion of the sanitary survey in-
volved.
(d) Records concerning a variance or exemption
granted to the system shall be kept for a period
ending not less than 5 years following the expira-
tion of such variance or exemption.
§141.34 [Reserved]
§141.35 Reporting and public notifica-
tion for certain unregulated con-
taminants.
(a) The requirements of this section only apply
to the contaminants listed in § 141.40.
(b) The owner or operator of a community
water system or non-transient, non-community
water system who is required to monitor under
§ 141.40 shall send a copy of the results of such
monitoring within 30 days of receipt and any pub-
lic notice under paragraph (d) of this section to the
State.
(c) The State, or the community water system or
non-transient, non-community water system if the
State has not adopted regulations equivalent to
§ 141.40, shall furnish the following information to
the Administrator for each sample analyzed under
§141.40:
(1) Results of all analytical methods, including
negatives;
(2) Name and address of the system that sup-
plied the sample;
(3) Contaminant(s);
(4) Analytical method(s) used;
(5) Date of sample;
(6) Date of analysis.
(d) The owner or operator shall notify persons
served by the system of the availability of the re-
sults of sampling conducted under § 141.40 by in-
cluding a notice in the first set of water bills is-
sued by the system after the receipt of the results
or written notice within three months. The notice
shall identify a person and supply the telephone
number to contact for information on the monitor-
ing results. For surface water systems, public noti-
fication is required only after the first quarter's
monitoring and must include a statement that addi-
tional monitoring will be conducted for three more
quarters with the results available upon request.
[52 FR 25714, July 8, 1987; 53 FR 25110, July 1, 1988]
53
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§141.40
Subpart E—Special Regulations,
Including Monitoring Regula-
tions and Prohibition on Lead
Use
§141.40 Special monitoring for inor-
ganic and organic contaminants.
(a) All community and non-transient, non-com-
munity water systems shall monitor for the con-
taminants listed in paragraph (e) in this section by
date specified in table 1:
TABLE 1—MONITORING SCHEDULE BY SYSTEM
SIZE
Number of persons served
Over 10,000
3,300 to 10,000
Less than 3,300
Monitoring to
begin no later
than —
Jan. 1, 1988.
Jan. 1, 1989.
Jan. 1, 1991.
(b) Surface water systems shall sample at points
in the distribution system representative of each
water source or at entry points to the distribution
system after any application of treatment. The
minimum number of samples is one year of quar-
terly samples per water source.
(c) Ground water systems shall sample at points
of entry to the distribution system representative
of each well after any application of treatment.
The minimum number of samples is one sample
per entry point to the distribution system.
(d) The State may require confirmation samples
for positive or negative results.
(e) Community water systems and non-transient,
non-community water systems shall monitor for
the following contaminants except as provided in
paragraph (f) of this section:
(1) Chloroform
(2) Bromodichloromethane
(3) Chlorodibromomethane
(4) Bromoform
(5) Dibromomethane
(6) m-Dichlorobenzene
(7) [Reserved]
(8) 1,1-Dichloropropene
(9) 1,1-Dichloroethane
(10) 1,1,2,2-Tetrachloroethane
(11) 1,3-Dichloropropane
(12) Chloromethane
(13) Bromomethane
(14) 1,2,3-Trichloropropane
(15) 1,1,1,2-Tetrachloroethane
(16) Chloroethane
(17) 2,2-Dichloropropane
(18) o-Chlorotoluene
(19) p-Chlorotoluene
(20) Bromobenzene
(21) 1,3-Dichloropropene
(f) [Reserved]
(g) Analysis for the unregulated contaminants
listed under paragraphs (e) and (j) of this section
shall be conducted using EPA Methods 502.2 or
524.2, or their equivalent as determined by EPA,
except analysis for bromodichloromethane,
bromoform, Chlorodibromomethane and chloro-
form under paragraph (e) of this section also may
be conducted by EPA Method 551, and analysis
for 1,2,3-trichloropropane also may be conducted
by EPA Method 504.1. A source for the EPA
methods is referenced at § 141.24(e).
(h) Analysis under this section shall only be
conducted by laboratories certified under
§ 141.24(f)(17).
(i) Public water systems may use monitoring
data collected any time after January 1, 1983 to
meet the requirements for unregulated monitoring,
provided that the monitoring program was consist-
ent with the requirements of this section. In addi-
tion, the results of EPA's Ground Water Supply
Survey may be used in a similar manner for sys-
tems supplied by a single well.
(j) Monitoring for the following compounds is
required at the discretion of the State:
(1) 1,2,4-Trimethylbenzene;
(2) 1,2,3-Trichlorobenzene;
(3) n-Propylbenzene;
(4) n-Butylbenzene;
(5) Naphthalene;
(6) Hexachlorobutadiene;
(7) 1,3,5-Trimethylbenzene;
(8) p-Isopropyltoluene;
(9) Isopropylbenzene;
(10) Tert-butylbenzene;
(11) Sec-butylbenzene;
(12) Fluorotrichloromethane;
(13) Dichlorodifluoromethane;
(14) Bromochloromethane.
(k) Instead of performing the monitoring re-
quired by this section, a community water system
or non-transient non-community water system
serving fewer than 150 service connections may
send a letter to the State stating that the system is
available for sampling. This letter must be sent to
the State no later than January 1, 1991. The sys-
tem shall not send such samples to the State, un-
less requested to do so by the State.
(1) All community and non-transient, non-com-
munity water systems shall repeat the monitoring
required in §141.40 no less frequently than every
five years from the dates specified in § 141.40(a).
(m) States or public water systems may com-
posite up to five samples when monitoring for
substances in § 141.40 (e) and (j) of this section.
(n) Monitoring of the contaminants listed in
§141.40(n) (11) and (12) shall be conducted as
follows:
54
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§141.40
(1) Each community and non-transient, non-
community water system shall take four consecu-
tive quarterly samples at each sampling point for
each contaminant listed in paragraph (n)(ll) of
this section and report the results to the State.
Monitoring must be completed by December 31,
1995.
(2) Each community and non-transient non-com-
munity water system shall take one sample at each
sampling point for each contaminant listed in para-
graph (n)(12) of this section and report the results
to the States. Monitoring must be completed by
December 31, 1995.
(3) Each community and non-transient non-com-
munity water system may apply to the State for a
waiver from the requirements of paragraph (n) (1)
and (2) of this section.
(4) The State may grant a waiver for the re-
quirement of paragraph (n)(l) of this section based
on the criteria specified in § 141.24(h)(6). The
State may grant a waiver from the requirement of
paragraph (n)(2) of this section if previous analyt-
ical results indicate contamination would not
occur, provided this data was collected after Janu-
ary 1, 1990.
(5) Groundwater systems shall take a minimum
of one sample at every entry point to the distribu-
tion system which is representative of each well
after treatment (hereafter called a sampling point).
Each sample must be taken at the same sampling
point unless conditions make another sampling
point more representative of each source or treat-
ment plant.
(6) Surface water systems shall take a minimum
of one sample at points in the distribution system
that are representative of each source or at each
entry point to the distribution system after treat-
ment (hereafter called a sampling point). Each
sample must be taken at the same sampling point
unless conditions make another sampling point
more representative of each source or treatment
plant.
NOTE: For purposes of this paragraph, surface
water systems include systems with a combination
of surface and ground sources.
(7) If the system draws water from more than
one source and the sources are combined before
distribution, the system must sample at an entry
point to the distribution system during periods of
normal operating conditions (i.e., when water rep-
resentative of all sources is being used).
(8) The State may require a confirmation sam-
ple for positive or negative results.
(9) The State may reduce the total number of
samples a system must analyze by allowing the
use of compositing. Composite samples from a
maximum of five sampling points are allowed.
Compositing of samples must be done in the lab-
oratory and the composite sample must be ana-
lyzed within 14 days of collection. If the popu-
lation served by the system is >3,300 persons,
then compositing may only be permitted by the
State at sampling points within a single system. In
systems serving <3,300 persons, the State may
permit compositing among different systems pro-
vided the 5-sample limit is maintained.
(10) Instead of performing the monitoring re-
quired by this section, a community water system
or non-transient non-community water system
serving fewer than 150 service connections may
send a letter to the State stating that the system is
available for sampling. This letter must be sent to
the State by January 1, 1994. The system shall not
send such samples to the State, unless requested to
do so by the State.
(11) Systems shall monitor for the unregulated
organic contaminants listed below, using the
method(s) identified below and using the analyt-
ical test procedures contained in Technical Notes
on Drinking Water Methods, EPA-600/R-94-173,
October 1994, which is available at NTIS, PB95-
104766. Method 6610 shall be followed in accord-
ance with the Standard Methods for the Examina-
tion of Water and Wastewater 18th Edition Sup-
plement, 1994, American Public Health Associa-
tion. This incorporation by reference was approved
by the Director of the Federal Register in accord-
ance with 5 U.S.C. 552(a) and 1 CFR part 51.
Copies may be obtained from the American Public
Health Association, 1015 Fifteenth Street NW,
Washington, DC 20005. Copies may be inspected
at EPA's Drinking Water Docket, 401 M Street,
SW., Washington, DC 20460; or at the Office of
the Federal Register, 800 North Capitol Street,
NW., Suite 700, Washington, DC. A source for
EPA methods 505, 507, 508, 508.1, 515.2, 525.2
and 531.1 is referenced at § 141.24(e).
Contaminants
aldicarb
aldicarb sulfone
aldicarb sulfoxide
aldrin
butachlor
carbaryl
dicamba
dieldrin
3-hydroxycarbofuran
methomyl
metolachlor
metribuzin
propachlor
Method
531.1, 6610.
531.1, 6610.
531.1, 6610.
505, 508, 525.2, 508.1.
507, 525.2.
531.1, 6610.
515.2, 555, 515.1.
505, 508, 525.2, 508.1.
531.1, 6610.
531.1, 6610.
507, 525.2, 508.1.
507, 525.2, 508.1.
508, 525.2, 508.1.
(12) Systems shall monitor for sulfate, an un-
regulated inorganic contaminant, by using the
methods listed at § 143.4(b).
[52 FR 25715, July 8, 1987; 53 FR 25110, July 1, 1988,
as amended at 56 FR 3592, Jan. 30, 1991; 57 FR 31845,
July 17, 1992; 59 FR 34323, July 1, 1994; 59 FR 62469,
Dec. 5, 1994]
55
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§141.41
§141.41 Special monitoring for so-
dium.
(a) Suppliers of water for community public
water systems shall collect and analyze one sam-
ple per plant at the entry point of the distribution
system for the determination of sodium concentra-
tion levels; samples must be collected and ana-
lyzed annually for systems utilizing surface water
sources in whole or in part, and at least every
three years for systems utilizing solely ground
water sources. The minimum number of samples
required to be taken by the system shall be based
on the number of treatment plants used by the sys-
tem, except that multiple wells drawing raw water
from a single aquifer may, with the State approval,
be considered one treatment plant for determining
the minimum number of samples. The supplier of
water may be required by the State to collect and
analyze water samples for sodium more frequently
in locations where the sodium content is variable.
(b) The supplier of water shall report to EPA
and/or the State the results of the analyses for so-
dium within the first 10 days of the month follow-
ing the month in which the sample results were re-
ceived or within the first 10 days following the
end of the required monitoring period as stipulated
by the State, whichever of these is first. If more
than annual sampling is required the supplier shall
report the average sodium concentration within 10
days of the month following the month in which
the analytical results of the last sample used for
the annual average was received. The supplier of
water shall not be required to report the results to
EPA where the State has adopted this regulation
and results are reported to the State. The supplier
shall report the results to EPA where the State has
not adopted this regulation.
(c) The supplier of water shall notify appro-
priate local and State public health officials of the
sodium levels by written notice by direct mail
within three months. A copy of each notice re-
quired to be provided by this paragraph shall be
sent to EPA and/or the State within 10 days of its
issuance. The supplier of water is not required to
notify appropriate local and State public health of-
ficials of the sodium levels where the State pro-
vides such notices in lieu of the supplier.
(d) Analyses for sodium shall be conducted as
directed in § 141.23(k)(l).
[45 FR 57345, Aug. 27, 1980, as amended at 59 FR
62470, Dec. 5, 1994]
§141.42 Special monitoring for
corrosivity characteristics.
(a)-(c) [Reserved]
(d) Community water supply systems shall
identify whether the following construction mate-
rials are present in their distribution system and
report to the State:
Lead from piping, solder, caulking, interior lining of dis-
tribution mains, alloys and home plumbing.
Copper from piping and alloys, service lines, and home
plumbing.
Galvanized piping, service lines, and home plumbing.
Ferrous piping materials such as cast iron and steel.
Asbestos cement pipe.
In addition, States may require identification and
reporting of other materials of construction present
in distribution systems that may contribute con-
taminants to the drinking water, such as:
Vinyl lined asbestos cement pipe.
Coal tar lined pipes and tanks.
[45 FR 57346, Aug. 27, 1980; 47 FR 10999, Mar. 12,
1982, as amended at 59 FR 62470, Dec. 5, 1994]
§141.43 Prohibition on use of lead
pipes, solder, and flux.
(a) In general—(1) Prohibition. Any pipe, sol-
der, or flux, which is used after June 19, 1986, in
the installation or repair of—
(i) Any public water system, or
(ii) Any plumbing in a residential or nonresi-
dential facility providing water for human con-
sumption which is connected to a public water
system shall be lead free as defined by paragraph
(d) of this section. This paragraph (a)(l) shall not
apply to leaded joints necessary for the repair of
cast iron pipes.
(2) Each public water system shall identify and
provide notice to persons that may be affected by
lead contamination of their drinking water where
such contamination results from either or both of
the following:
(i) The lead content in the construction mate-
rials of the public water distribution system,
(ii) Corrosivity of the water supply sufficient to
cause leaching of lead.
Notice shall be provided notwithstanding the ab-
sence of a violation of any national drinking water
standard. The manner and form of notice are spec-
ified in § 141.34 of this part.
(b) State enforcement—(1) Enforcement of pro-
hibition. The requirements of paragraph (a)(l) of
this section shall be enforced in all States effective
June 19, 1988. States shall enforce such require-
ments through State or local plumbing codes, or
such other means of enforcement as the State may
determine to be appropriate.
(2) Enforcement of public notice requirements.
The requirements of paragraph (a)(2) of this sec-
tion, shall apply in all States effective June 19,
1988.
(c) Penalties. If the Administrator determines
that a State is not enforcing the requirements of
paragraph (a) of this section, as required pursuant
to paragraph (b) of this section, the Administrator
may withhold up to 5 percent of Federal funds
56
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§141.52
available to that State for State program grants
under section 1443(a) of the Act.
(d) Definition of lead free. For purposes of this
section, the term lead free
(1) When used with respect to solders and flux
refers to solders and flux containing not more than
0.2 percent lead, and
(2) When used with respect to pipes and pipe
fittings refers to pipes and pipe fittings containing
not more than 8.0 percent lead.
[52 FR 20674, June 2, 1987]
Subpart F—Maximum
Contaminant Level Goals
§141.50 Maximum contaminant level
goals for organic contaminants.
(a) MCLGs are zero for the following contami-
nants:
(16)
(17)
(18)
(10)
PO)
(21)
(22)
(23)
P4)
P5)
(26)
(27)
PR)
PQ)
no)
(31)
(32)
mi
Contaminant
Monochlorobenzene
Styrene
Toluene
2 4 5-TP
Dalapon
Di(2-ethylhexyl)adipate
Dinoseb
Endothall
Endrin
Glyphosate
Oxamyl (Vydate)
Simazine
1,2,4-Trichlorobenzene
MCLG in
mg/l
0.1
0.1
1
005
10
0.2
.4
.007
02
1
.002
.7
05
2
5
.004
.07
003
[50 FR 46901, Nov. 13, 1985, as amended at 52 FR
20674, June 2, 1987; 52 FR 25716, July 8, 1987; 56 FR
(1) Benzene
(2) Vinyl chloride
(3) Carbon tetrachloride
(4) 1,2-dichloroethane
(5) Trichloroethylene
(6) Acrylamide
(7) Alachlor
(8) Chlordane
(9) Dibromochloropropane
(10) 1,2-Dichloropropane
(11) Epichlorohydrin
(12) Ethylene dibromide
(13) Heptachlor
(14) Heptachlor epoxide
(15) Pentachlorophenol
(16) Polychlorinated biphenyls (PCBs)
(17) Tetrachloroethylene
(18) Toxaphene
(19) Benzo[a]pyrene
(20) Dichloromethane (methylene chloride)
(21) Di(2-ethylhexyl)phthalate
(22) Hexachlorobenzene
(23) 2,3,7,8-TCDD (Dioxin)
(b) MCLGs for the following contaminants are
as indicated:
Contaminant
(2) 1,1,1-Trichloroethane
(3) para-Dichlorobenzene
(4) Aldicarb
(5) Aldicarb sulfoxide
(8) Carbofuran
(10) cis-1,2-Dichloroethylene
(11) trans-1,2-Dichloroethylene
(13) Ethylbenzene
(151 Methoxvchlor
MCLG in
mg/l
0.007
0.20
0.075
0.001
0.001
0.001
0.003
0.04
0.6
0.07
0.1
0.07
0.7
0.0002
0.04
3592, Jan. 30, 1991; 56 FR 30280, July 1, 1991; 57 FR
31846, July 17, 1992]
§141.51 Maximum contaminant level
goals for inorganic contaminants.
(a) [Reserved]
(b) MCLGs for the following contaminants are
as indicated:
Contaminant
Antimony
Barium
Beryllium
Copper
Cyanide (as free Cyanide)
Nitrate
Nitrite
Total Nitrate+Nitrite
MCLG (mg/l)
0.006
7 Million fibers/liter
(longer than 10 ^im).
2
.004
0.005
0.1
1.3
.2
4.0
zero
0.002
10 (as Nitrogen).
1 (as Nitrogen).
10 (as Nitrogen).
0.05
.0005
[50 FR 47155, Nov. 14, 1985, as amended at 52 FR
20674, June 2, 1987; 56 FR 3593, Jan. 30, 1991; 56 FR
26548, June 7, 1991; 56 FR 30280, July 1, 1991; 57 FR
31846, July 17, 1992; 60 FR 33932, June 29, 1995]
§141.52 Maximum contaminant level
goals for microbiological contami-
nants.
MCLGs for the following contaminants are as
indicated:
Contaminant MCLG
(2) Viruses zero
(3) Leaionella zero
57
-------
§141.60
Contaminant
(4) Total coliforms (including fecal coliforms
and Escherichia coli).
MCLG
zero.
[54 FR 27527, 27566, June 29, 1989; 55 FR 25064, June
19, 1990]
Subpart G—National Revised Pri-
mary Drinking Water Regula-
tions: Maximum Contaminant
Levels
§141.60 Effective dates.
(a) The effective dates for § 141.61 are as fol-
lows:
(1) The effective date for paragraphs (a)(l)
through (a)(8) of § 141.61 is January 9, 1989.
(2) The effective date for paragraphs (a)(9)
through (a)(18) and (c)(l) through (c)(18) of
§ 141.61 is July 30, 1992.
(3) The effective date for paragraphs (a)(19)
through (a)(21), (c)(19) through (c)(25), and
(c)(27) through (c)(33) of §141.61 is January 17,
1994. The effective date of § 141.61(c)(26) is Au-
gust 17, 1992.
(b) The effective dates for §141.62 are as fol-
lows:
(1) The effective date of paragraph (b)(l) of
§ 141.62 is October 2, 1987.
(2) The effective date for paragraphs (b)(2) and
(b)(4) through (b)(10) of § 141.62 is July 30, 1992.
(3) The effective date for paragraphs (b)(ll)
through (b)(15) of § 141.62 is January 17, 1994.
[56 FR 3593, Jan. 30, 1991, as amended at 57 FR 31846,
July 17, 1992; 59 FR 34324, July 1, 1994]
§141.61 Maximum contaminant levels
for organic contaminants.
(a) The following maximum contaminant levels
for organic contaminants apply to community and
non-transient, non-community water systems.
CAS No.
(1) 75-01-4
(2) 71-43-2
(3) 56-23-5
(4) 107-06-2
(5) 79-01-6
(6) 106-46-7
(7) 75-35-4
(8) 71-55-6
(9) 156-59-2
(10) 78-87-5
(11) 100-41^1
(12) 108-90-7
(13) 95-50-1
(14) 100-42-5
(15) 127-18^1
(16) 108-88-3
(17) 156-60-5
(18) 1330-20-7
(19) 75-09-2
(20) 120-82-1
(21) 79-00-5
Contaminant
Benzene
1,2-Dichloroethane
para-Dichlorobenzene
1,1-Dichloroethylene
cis-1,2-Dichloroethylene
Ethylbenzene
Styrene
Toluene
Xylenes (total)
Dichloromethane
1,1,2-Trichloro- ethane
MCL (mg/l)
0002
0.005
0005
0.005
0005
0.075
0.007
02
0.07
0005
0.7
0 1
06
0.1
0005
1
0 1
10
0.005
07
.005
(b) The Administrator, pursuant to section 1412
of the Act, hereby identifies as indicated in the
Table below granular activated carbon (GAC),
packed tower aeration (PTA), or oxidation (OX) as
the best technology treatment technique, or other
means available for achieving compliance with the
maximum contaminant level for organic contami-
nants identified in paragraphs (a) and (c) of this
section:
BAT FOR ORGANIC CONTAMINANTS LISTED IN § 141.61 (a) AND (c)
CAS No.
15972-60-8
1 1 6-06-3
1 646-88-4
1 646-87-3
1912-24-9
71-43-2
50-32-8
1563-66-2
56-23-5
57-74-9
Contaminant
Alachlor
Atrazine
Benzene
Carbofuran
Chlordane
GAC
X
X
X
X
X
X
X
X
X
X
PTA
X
X
ox
58
-------
§141.61
BAT FOR ORGANIC CONTAMINANTS LISTED IN §141.61 (a) AND (c)—Continued
CAS No.
75-99-0
94-75-7
103-23-1
117-81-7
96-12-8
95-50-1
1 06-46-7
107-06-2
75-35^1
156-59-2
1 56-60-5
75-09-2
78-87-5
88-85-7
85-00-7
1 45_73_3
72-20-8
100-41-4
1 06-93-4
1071-83-6
76-44-8
1024-57-3
1 1 8-74-1
77_47_3
58-89-9
72-43-5
108-90-7
231 35-22-0
87-86-5
1918-02-1
1 336-36-3
122-34-9
1 00-42-5
1746-01-6
1 27-1 8-4
1 08-88-3
8001-35-2
93-72-1
120-82-1
71-55-6
79-00-5
79-01-6
75-01^1
1330-20-7
Contaminant
Dalapon
24-D
Di (2-ethylhexyl) adipate
Di (2-ethylhexyl) phthalate
Dibromochloropropane (DBCP)
o-Dichlorobenzene
1,2-Dichloroethane
cis-1,2-Dichloroethylene
1,2-Dichloropropane
Diquat
Endothall
Endrin
Ethylbenzene
Ethylene Dibromide (EDB)
Gylphosate
Heptachlor epoxide
Lindane
Monochlorobenzene
Oxamyl (Vydate)
Pentachlorophenol
Picloram
Polychlorinated biphenyls (PCB)
Simazine
2,3,7,8-TCDD (Dioxin)
Toxaphene
2 4 5-TP (Silvex)
1,2,4-Trichlorobenzene
1,1,2-Trichloroethane
Trichloroethylene
Xylene
GAC
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
PTA
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
ox
X
(c) The following maximum contaminant levels
for synthetic organic contaminants apply to com-
munity water systems and non-transient, non-com-
munity water systems:
CAS No.
(1) 15972-60-8
(2) 116-06-3
(3) 1646-87-3
(4) 1646-87-4
(5) 1912-24-9
(6) 1563-66-2
(7) 57-74-9
(8) 96-12-8
(9) 94-75-7
(10) 106-93-4
(11) 76-44-8
(12) 1024-57-3
(13) 58-89-9
(14) 72-43-5
(15) 1336-36-3
(16) 87-86-5
(17) 8001-35-2
(18) 93-72-1
(19) 50-32-8
Contaminant
Alachlor
Aldicarb sulfone
Carbofuran
2,4-D
Heptachlor
Lindane
Methoxychlor
Pentachlorophenol
2,4,5-TP
BenzoFal ovrene
MCL (mg/l)
0.002
0003
0004
0.002
0003
0.04
0002
00002
0.07
0 00005
0.0004
00002
0.0002
0.04
00005
0.001
0003
0.05
0.0002
59
-------
§141.62
CAS No.
(20) 75-99-0
(21) 103-23-1
(22) 117-81-7
(23) 88-85-7
(24) 85-00-7
(25) 145-73-3
(26) 72-20-8
(27) 1071-53-6
(28) 118-74-1
(29) 77-47-4
(30) 23135-22-0
(31) 1918-02-1
(32) 122-34-9
(33) 1746-01-6
Contaminant
Di(2-ethylhexyl) phthalate
Diquat
Endothall
Endrin
Glyphosate
Hexachlorocydopentadiene
Oxamyl (Vydate)
Picloram
2.3.7.8-TCDD (Dioxinl
MCL (mg/l)
02
04
0.006
0007
0.02
0 1
0.002
0.7
0001
0.05
02
0.5
0004
3x1 0-8
[56 FR 3593, Jan. 30, 1991, as amended at 56 FR 30280,
July 1, 1991; 57 FR 31846, July 17, 1992; 59 FR 34324,
July 1, 1994]
§141.62 Maximum contaminant levels
for inorganic contaminants.
(a) [Reserved]
(b) The maximum contaminant levels for inor-
ganic contaminants specified in paragraphs (b)
(2)—(6), (b)(10), and (b) (11)—(15) of this sec-
tion apply to community water systems and non-
transient, non-community water systems. The max-
imum contaminant level specified in paragraph
(b)(l) of this section only applies to community
water systems. The maximum contaminant levels
specified in (b)(7), (b)(8), and (b)(9) of this sec-
tion apply to community water systems; non-tran-
sient, non-community water systems; and transient
non-community water systems.
BAT FOR INORGANIC COMPOUNDS LISTED i
SECTION 141.62(6)
(1) Fluoride
(2) Asbestos ...
(3) Barium
(4) Cadmium
(5) Chromium
(6) Mercury
(7) Nitrate
(8) Nitrite
(9) Total Nitrate and Nitrite .
(10) Selenium
(11) Antimony
(12) Beryllium
(13) Cyanide (as free Cya-
nide).
(14) [Reserved]
(15) Thallium
MCL (mg/l)
4.0
7 Million Fibers/liter (longer
than 10 ^im).
2
0.005
0.1
0.002
10 (as Nitrogen)
1 (as Nitrogen)
10 (as Nitrogen)
0.05
0.006
0.004
0.2
(c) The Administrator, pursuant to section 1412
of the Act, hereby identifies the following as the
best technology, treatment technique, or other
means available for achieving compliance with the
maximum contaminant levels for inorganic con-
taminants identified in paragraph (b) of this sec-
tion, except fluoride:
Chemical Name
Asbestos
Barium
Cyanide
Mercury
Nickel
Nitrate
Nitrite
Selenium
Thallium
BAT(s)
27
2,3,8
5,6,7,9
12567
2567
25627
5,7,10
21,4,61,71
567
579
5,7
1,23,6,7,9
1,5
1 BAT only if influent Hg concentrations
2 BAT for Chromium III only.
3 BAT for Selenium IV only.
Key to BATS in Table
1 =Activated Alumina
2=Coagulation/Filtration
3=Direct and Diatomite Filtration
4=Granular Activated Carbon
5=Ion Exchange
6=Lime Softening
7=Reverse Osmosis
8=Corrosion Control
9=Electrodialysis
10=Chlorme
ll=Ultraviolet
[56 FR 3594, Jan. 30, 1991, as amended at 56 FR 30280,
July 1, 1991; 57 FR 31847, July 17, 1992; 59 FR 34325,
July 1, 1994; 60 FR 33932, June 29, 1995]
§141.63 Maximum contaminant levels
(MCLs) for microbiological contami-
nants.
(a) The MCL is based on the presence or ab-
sence of total coliforms in a sample, rather than
coliform density.
(1) For a system which collects at least 40 sam-
ples per month, if no more than 5.0 percent of the
samples collected during a month are total coli-
form-positive, the system is in compliance with
the MCL for total coliforms.
60
-------
§141.71
(2) For a system which collects fewer than 40
samples/month, if no more than one sample col-
lected during a month is total coliform-positive,
the system is in compliance with the MCL for
total coliforms.
(b) Any fecal coliform-positive repeat sample or
E. co/z-positive repeat sample, or any total coli-
form-positive repeat sample following a fecal coli-
form-positive or E. co/z-positive routine sample
constitutes a violation of the MCL for total coli-
forms. For purposes of the public notification re-
quirements in § 141.32, this is a violation that may
pose an acute risk to health.
(c) A public water system must determine com-
pliance with the MCL for total coliforms in para-
graphs (a) and (b) of this section for each month
in which it is required to monitor for total coli-
forms.
(d) The Administrator, pursuant to section 1412
of the Act, hereby identifies the following as the
best technology, treatment techniques, or other
means available for achieving compliance with the
maximum contaminant level for total coliforms in
paragraphs (a) and (b) of this section:
(1) Protection of wells from contamination by
coliforms by appropriate placement and construc-
tion;
(2) Maintenance of a disinfectant residual
throughout the distribution system;
(3) Proper maintenance of the distribution sys-
tem including appropriate pipe replacement and re-
pair procedures, main flushing programs, proper
operation and maintenance of storage tanks and
reservoirs, and continual maintenance of positive
water pressure in all parts of the distribution sys-
tem;
(4) Filtration and/or disinfection of surface
water, as described in subpart H, or disinfection of
ground water using strong oxidants such as chlo-
rine, chlorine dioxide, or ozone; and
(5) For systems using ground water, compliance
with the requirements of an EPA-approved State
Wellhead Protection Program developed and im-
plemented under section 1428 of the SDWA.
[54 FR 27566, June 29, 1989; 55 FR 25064, June 19,
1990]
Subpart H—Filtration and
Disinfection
SOURCE: 54 FR 27527, June 29, 1989, unless otherwise
noted.
§ 141.70 General requirements.
(a) The requirements of this subpart H con-
stitute national primary drinking water regulations.
These regulations establish criteria under which
filtration is required as a treatment technique for
public water systems supplied by a surface water
source and public water systems supplied by a
ground water source under the direct influence of
surface water. In addition, these regulations estab-
lish treatment technique requirements in lieu of
maximum contaminant levels for the following
contaminants: Giardia lamblia, viruses,
heterotrophic plate count bacteria, Legionella, and
turbidity. Each public water system with a surface
water source or a ground water source under the
direct influence of surface water must provide
treatment of that source water that complies with
these treatment technique requirements. The treat-
ment technique requirements consist of installing
and properly operating water treatment processes
which reliably achieve:
(1) At least 99.9 percent (3-log) removal and/or
inactivation of Giardia lamblia cysts between a
point where the raw water is not subject to re-
contamination by surface water runoff and a point
downstream before or at the first customer; and
(2) At least 99.99 percent (4-log) removal and/
or inactivation of viruses between a point where
the raw water is not subject to recontamination by
surface water runoff and a point downstream be-
fore or at the first customer.
(b) A public water system using a surface water
source or a ground water source under the direct
influence of surface water is considered to be in
compliance with the requirements of paragraph (a)
of this section if:
(1) It meets the requirements for avoiding filtra-
tion in § 141.71 and the disinfection requirements
in §141.72(a); or
(2) It meets the filtration requirements in
§ 141.73 and the disinfection requirements in
§ 141.72(b).
(c) Each public water system using a surface
water source or a ground water source under the
direct influence of surface water must be operated
by qualified personnel who meet the requirements
specified by the State.
§141.71 Criteria for avoiding filtra-
tion.
A public water system that uses a surface water
source must meet all of the conditions of para-
graphs (a) and (b) of this section, and is subject
to paragraph (c) of this section, beginning Decem-
ber 30, 1991, unless the State has determined, in
writing pursuant to § 1412(b)(7)(C)(iii), that filtra-
tion is required. A public water system that uses
a ground water source under the direct influence
of surface water must meet all of the conditions
of paragraphs (a) and (b) of this section and is
subject to paragraph (c) of this section, beginning
18 months after the State determines that it is
under the direct influence of surface water, or De-
cember 30, 1991, whichever is later, unless the
61
-------
§141.71
State has determined, in writing pursuant to
§ 1412(b)(7)(C)(iii), that filtration is required. If
the State determines in writing pursuant to
§ 1412(b)(7)(C)(iii) before December 30, 1991,
that filtration is required, the system must have in-
stalled filtration and meet the criteria for filtered
systems specified in §§ 141.72(b) and 141.73 by
June 29, 1993. Within 18 months of the failure of
a system using surface water or a ground water
source under the direct influence of surface water
to meet any one of the requirements of paragraphs
(a) and (b) of this section or after June 29, 1993,
whichever is later, the system must have installed
filtration and meet the criteria for filtered systems
specified in §§ 141.72(b) and 141.73.
(a) Source water quality conditions. (1) The
fecal coliform concentration must be equal to or
less than 20/100 ml, or the total coliform con-
centration must be equal to or less than 100/100
ml (measured as specified in § 141.74 (a) (1) and
(2) and (b)(l)), in representative samples of the
source water immediately prior to the first or only
point of disinfectant application in at least 90 per-
cent of the measurements made for the 6 previous
months that the system served water to the public
on an ongoing basis. If a system measures both
fecal and total coliforms, the fecal coliform cri-
terion, but not the total coliform criterion, in this
paragraph must be met.
(2) The turbidity level cannot exceed 5 NTU
(measured as specified in § 141.74 (a)(4) and
(b)(2)) in representative samples of the source
water immediately prior to the first or only point
of disinfectant application unless: (i) the State de-
termines that any such event was caused by cir-
cumstances that were unusual and unpredictable;
and (ii) as a result of any such event, there have
not been more than two events in the past 12
months the system served water to the public, or
more than five events in the past 120 months the
system served water to the public, in which the
turbidity level exceeded 5 NTU. An "event" is a
series of consecutive days during which at least
one turbidity measurement each day exceeds 5
NTU.
(b) Site-specific conditions. (l)(i) The public
water system must meet the requirements of
§ 141.72(a)(l) at least 11 of the 12 previous
months that the system served water to the public,
on an ongoing basis, unless the system fails to
meet the requirements during 2 of the 12 previous
months that the system served water to the public,
and the State determines that at least one of these
failures was caused by circumstances that were
unusual and unpredictable.
(ii) The public water system must meet the re-
quirements of § 141.72(a)(2) at all times the sys-
tem serves water to the public.
(iii) The public water system must meet the re-
quirements of § 141.72(a)(3) at all times the sys-
tem serves water to the public unless the State de-
termines that any such failure was caused by cir-
cumstances that were unusual and unpredictable.
(iv) The public water system must meet the re-
quirements of § 141.72(a)(4) on an ongoing basis
unless the State determines that failure to meet
these requirements was not caused by a deficiency
in treatment of the source water.
(2) The public water system must maintain a
watershed control program which minimizes the
potential for contamination by Giardia lamblia
cysts and viruses in the source water. The State
must determine whether the watershed control pro-
gram is adequate to meet this goal. The adequacy
of a program to limit potential contamination by
Giardia lamblia cysts and viruses must be based
on: the comprehensiveness of the watershed re-
view; the effectiveness of the system's program to
monitor and control detrimental activities occur-
ring in the watershed; and the extent to which the
water system has maximized land ownership and/
or controlled land use within the watershed. At a
minimum, the watershed control program must:
(i) Characterize the watershed hydrology and
land ownership;
(ii) Identify watershed characteristics and activi-
ties which may have an adverse effect on source
water quality; and
(iii) Monitor the occurrence of activities which
may have an adverse effect on source water qual-
ity.
The public water system must demonstrate
through ownership and/or written agreements with
landowners within the watershed that it can con-
trol all human activities which may have an ad-
verse impact on the microbiological quality of the
source water. The public water system must sub-
mit an annual report to the State that identifies any
special concerns about the watershed and how
they are being handled; describes activities in the
watershed that affect water quality; and projects
what adverse activities are expected to occur in
the future and describes how the public water sys-
tem expects to address them. For systems using a
ground water source under the direct influence of
surface water, an approved wellhead protection
program developed under section 1428 of the Safe
Drinking Water Act may be used, if the State
deems it appropriate, to meet these requirements.
(3) The public water system must be subject to
an annual on-site inspection to assess the water-
shed control program and disinfection treatment
process. Either the State or a party approved by
the State must conduct the on-site inspection. The
inspection must be conducted by competent indi-
viduals such as sanitary and civil engineers,
sanitarians, or technicians who have experience
62
-------
§141.72
and knowledge about the operation and mainte-
nance of a public water system, and who have a
sound understanding of public health principles
and waterborne diseases. A report of the on-site
inspection summarizing all findings must be pre-
pared every year. The on-site inspection must indi-
cate to the State's satisfaction that the watershed
control program and disinfection treatment process
are adequately designed and maintained. The on-
site inspection must include:
(i) A review of the effectiveness of the water-
shed control program;
(ii) A review of the physical condition of the
source intake and how well it is protected;
(iii) A review of the system's equipment main-
tenance program to ensure there is low probability
for failure of the disinfection process;
(iv) An inspection of the disinfection equipment
for physical deterioration;
(v) A review of operating procedures;
(vi) A review of data records to ensure that all
required tests are being conducted and recorded
and disinfection is effectively practiced; and
(vii) Identification of any improvements which
are needed in the equipment, system maintenance
and operation, or data collection.
(4) The public water system must not have been
identified as a source of a waterborne disease out-
break, or if it has been so identified, the system
must have been modified sufficiently to prevent
another such occurrence, as determined by the
State.
(5) The public water system must comply with
the maximum contaminant level (MCL) for total
coliforms in §141.63 at least 11 months of the 12
previous months that the system served water to
the public, on an ongoing basis, unless the State
determines that failure to meet this requirement
was not caused by a deficiency in treatment of the
source water.
(6) The public water system must comply with
the requirements for trihalomethanes in §§141.12
and 141.30.
(c) Treatment technique violations. (1) A system
that (i) fails to meet any one of the criteria in
paragraphs (a) and (b) of this section and/or which
the State has determined that filtration is required,
in writing pursuant to § 1412(b)(7)(C)(iii), and (ii)
fails to install filtration by the date specified in the
introductory paragraph of this section is in viola-
tion of a treatment technique requirement.
(2) A system that has not installed filtration is
in violation of a treatment technique requirement
if:
(i) The turbidity level (measured as specified in
§ 141.74(a)(4) and (b)(2)) in a representative sam-
ple of the source water immediately prior to the
first or only point of disinfection application ex-
ceeds 5 NTU; or
(ii) The system is identified as a source of a
waterborne disease outbreak.
§141.72 Disinfection.
A public water system that uses a surface water
source and does not provide filtration treatment
must provide the disinfection treatment specified
in paragraph (a) of this section beginning Decem-
ber 30, 1991, unless the State determines that fil-
tration is required in writing pursuant to § 1412
(b)(7)(C)(iii). A public water system that uses a
ground water source under the direct influence of
surface water and does not provide filtration treat-
ment must provide disinfection treatment specified
in paragraph (a) of this section beginning Decem-
ber 30, 1991, or 18 months after the State deter-
mines that the ground water source is under the
influence of surface water, whichever is later, un-
less the State has determined that filtration is re-
quired in writing pursuant to § 1412(b)(7)(C)(iii).
If the State has determined that filtration is re-
quired, the system must comply with any interim
disinfection requirements the State deems nec-
essary before filtration is installed. A system that
uses a surface water source that provides filtration
treatment must provide the disinfection treatment
specified in paragraph (b) of this section beginnng
June 29, 1993, or beginning when filtration is in-
stalled, whichever is later. A system that uses a
ground water source under the direct influence of
surface water and provides filtration treatment
must provide disinfection treatment as specified in
paragraph (b) of this section by June 29, 1993, or
beginning when filtration is installed, whichever is
later. Failure to meet any requirement of this sec-
tion after the applicable date specified in this in-
troductory paragraph is a treatment technique vio-
lation.
(a) Disinfection requirements for public water
systems that do not provide filtration. Each public
water system that does not provide filtration treat-
ment must provide disinfection treatment as fol-
lows:
(1) The disinfection treatment must be sufficient
to ensure at least 99.9 percent (3-log) inactivation
of Giardia lamblia cysts and 99.99 percent (4-log)
inactivation of viruses, every day the system
serves water to the public, except any one day
each month. Each day a system serves water to the
public, the public water system must calculate the
CT value(s) from the system's treatment param-
eters, using the procedure specified in
§ 141.74(b)(3), and determine whether this value(s)
is sufficient to achieve the specified inactivation
rates for Giardia lamblia cysts and viruses. If a
system uses a disinfectant other than chlorine, the
system may demonstrate to the State, through the
use of a State-approved protocol for on-site dis-
infection challenge studies or other information
63
-------
§141.72
satisfactory to the State, that CTgg.g values other
than those specified in tables 2.1 and 3.1 in
§ 141.74(b)(3) or other operational parameters are
adequate to demonstrate that the system is achiev-
ing minimum inactivation rates required by para-
graph (a)(l) of this section.
(2) The disinfection system must have either (i)
redundant components, including an auxiliary
power supply with automatic start-up and alarm to
ensure that disinfectant application is maintained
continuously while water is being delivered to the
distribution system, or (ii) automatic shut-off of
delivery of water to the distribution system when-
ever there is less than 0.2 mg/1 of residual dis-
infectant concentration in the water. If the State
determines that automatic shut-off would cause
unreasonable risk to health or interfere with fire
protection, the system must comply with para-
graph (a)(2)(i) of this section.
(3) The residual disinfectant concentration in the
water entering the distribution system, measured as
specified in §141.74 (a)(5) and (b)(5), cannot be
less than 0.2 mg/1 for more than 4 hours.
(4)(i) The residual disinfectant concentration in
the distribution system, measured as total chlorine,
combined chlorine, or chlorine dioxide, as speci-
fied in §141.74 (a)(5) and (b)(6), cannot be
undetectable in more than 5 percent of the samples
each month, for any two consecutive months that
the system serves water to the public. Water in the
distribution system with a heterotrophic bacteria
concentration less than or equal to 500/ml, meas-
ured as heterotrophic plate count (HPC) as speci-
fied in § 141.74(a)(3), is deemed to have a detect-
able disinfectant residual for purposes of determin-
ing compliance with this requirement. Thus, the
value "V" in the following formula cannot ex-
ceed 5 percent in one month, for any two consecu-
tive months.
c+d+e
V= X100
a+b
where:
a=number of instances where the residual disinfectant
concentration is measured;
b=number of instances where the residual disinfectant
concentration is not measured but heterotrophic bac-
teria plate count (HPC) is measured;
c=number of instances where the residual disinfectant
concentration is measured but not detected and no
HPC is measured;
d=number of instances where the residual disinfectant
concentration is measured but not detected and
where the HPC is >500/ml; and
e=number of instances where the residual disinfectant
concentration is not measured and HPC is >500/ml.
(ii) If the State determines, based on site-spe-
cific considerations, that a system has no means
for having a sample transported and analyzed for
HPC by a certified laboratory under the requisite
time and temperature conditions specified by
§ 141.74(a)(3) and that the system is providing
adequate disinfection in the distribution system,
the requirements of paragraph (a)(4)(i) of this sec-
tion do not apply to that system.
(b) Disinfection requirements for public water
systems which provide filtration. Each public water
system that provides filtration treatment must pro-
vide disinfection treatment as follows.
(1) The disinfection treatment must be sufficient
to ensure that the total treatment processes of that
system achieve at least 99.9 percent (3-log) inac-
tivation and/or removal of Giardia lamblia cysts
and at least 99.99 percent (4-log) inactivation and/
or removal of viruses, as determined by the State.
(2) The residual disinfectant concentration in the
water entering the distribution system, measured as
specified in § 141.74 (a)(5) and (c)(2), cannot be
less than 0.2 mg/1 for more than 4 hours.
(3)(i) The residual disinfectant concentration in
the distribution system, measured as total chlorine,
combined chlorine, or chlorine dioxide, as speci-
fied in §141.74 (a)(5) and (c)(3), cannot be
undetectable in more than 5 percent of the samples
each month, for any two consecutive months that
the system serves water to the public. Water in the
distribution system with a heterotrophic bacteria
concentration less than or equal to 500/ml, meas-
ured as heterotrophic plate count (HPC) as speci-
fied in § 141.74(a)(3), is deemed to have a detect-
able disinfectant residual for purposes of determin-
ing compliance with this requirement. Thus, the
value "V" in the following formula cannot ex-
ceed 5 percent in one month, for any two consecu-
tive months.
c+d+e
V= X100
a+b
where:
a=number of instances where the residual disinfectant
concentration is measured;
b=number of instances where the residual disinfectant
concentration is not measured but heterotrophic bac-
teria plate count (HPC) is measured;
c=number of instances where the residual disinfectant
concentration is measured but not detected and no
HPC is measured;
d=number of instances where no residual disinfectant con-
centration is detected and where the HPC is >500/
ml; and
e=number of instances where the residual disinfectant
concentration is not measured and HPC is >500/ml.
(ii) If the State determines, based on site-spe-
cific considerations, that a system has no means
for having a sample transported and analyzed for
HPC by a certified laboratory under the requisite
time and temperature conditions specified in
§ 141.74(a)(3) and that the system is providing
64
-------
§141.74
adequate disinfection in the distribution system,
the requirements of paragraph (b)(3)(i) of this sec-
tion do not apply.
§141.73 Filtration.
A public water system that uses a surface water
source or a ground water source under the direct
influence of surface water, and does not meet all
of the criteria in § 141.71 (a) and (b) for avoiding
filtration, must provide treatment consisting of
both disinfection, as specified in § 141.72(b), and
filtration treatment which complies with the re-
quirements of paragraph (a), (b), (c), (d), or (e) of
this section by June 29, 1993, or within 18 months
of the failure to meet any one of the criteria for
avoiding filtration in §141.71 (a) and (b), which-
ever is later. Failure to meet any requirement of
this section after the date specified in this intro-
ductory paragraph is a treatment technique viola-
tion.
(a) Conventional filtration treatment or direct
filtration. (1) For systems using conventional fil-
tration or direct filtration, the turbidity level of
representative samples of a system's filtered water
must be less than or equal to 0.5 NTU in at least
95 percent of the measurements taken each month,
measured as specified in §141.74 (a)(4) and
(c)(l), except that if the State determines that the
system is capable of achieving at least 99.9 per-
cent removal and/or inactivation of Giardia
lamblia cysts at some turbidity level higher than
0.5 NTU in at least 95 percent of the measure-
ments taken each month, the State may substitute
this higher turbidity limit for that system. How-
ever, in no case may the State approve a turbidity
limit that allows more than 1 NTU in more than
5 percent of the samples taken each month, meas-
ured as specified in § 141.74 (a)(4) and (c)(l).
(2) The turbidity level of representative samples
of a system's filtered water must at no time ex-
ceed 5 NTU, measured as specified in §141.74
(a)(4) and (c)(l).
(b) Slow sand filtration. (1) For systems using
slow sand filtration, the turbidity level of rep-
resentative samples of a system's filtered water
must be less than or equal to 1 NTU in at least
95 percent of the measurements taken each month,
measured as specified in §141.74 (a)(4) and
(c)(l), except that if the State determines there is
no significant interference with disinfection at a
higher turbidity level, the State may substitute this
higher turbidity limit for that system.
(2) The turbidity level of representative samples
of a system's filtered water must at no time ex-
ceed 5 NTU, measured as specified in §141.74
(a)(4) and (c)(l).
(c) Diatomaceous earth filtration. (1) For sys-
tems using diatomaceous earth filtration, the tur-
bidity level of representative samples of a sys-
tem's filtered water must be less than or equal to
1 NTU in at least 95 percent of the measurements
taken each month, measured as specified in
§ 141.74 (a)(4) and (c)(l).
(2) The turbidity level of representative samples
of a system's filtered water must at no time ex-
ceed 5 NTU, measured as specified in §141.74
(a)(4) and (c)(l).
(d) Other filtration technologies. A public water
system may use a filtration technology not listed
in paragraphs (a)-(c) of this section if it dem-
onstrates to the State, using pilot plant studies or
other means, that the alternative filtration tech-
nology, in combination with disinfection treatment
that meets the requirements of §141.72(b), con-
sistently achieves 99.9 percent removal and/or in-
activation of Giardia lamblia cysts and 99.99 per-
cent removal and/or inactivation of viruses. For a
system that makes this demonstration, the require-
ments of paragraph (b) of this section apply.
§141.74 Analytical and monitoring re-
quirements.
(a) Analytical requirements. Only the analytical
method(s) specified in this paragraph, or otherwise
approved by EPA, may be used to demonstrate
compliance with the requirements of §§ 141.71,
141.72, and 141.73. Measurements for pH, tem-
perature, turbidity, and residual disinfectant con-
centrations must be conducted by a party approved
by the State. Measurements for total coliforms,
fecal coliforms, and HPC must be conducted by a
laboratory certified by the State or EPA to do such
analysis. Until laboratory certification criteria are
developed for the analysis of HPC and fecal coli-
forms, any laboratory certified for total coliform
analysis by EPA is deemed certified for HPC and
fecal coliform analysis. The following procedures
shall be performed in accordance with the publica-
tions listed in the following section. This incorpo-
ration by reference was approved by the Director
of the Federal Register in accordance with 5
U.S.C. 552(a) and 1 CFR part 51. Copies of the
methods published in Standard Methods for the
Examination of Water and Wastewater may be ob-
tained from the American Public Health Associa-
tion et al., 1015 Fifteenth Street, NW., Washing-
ton, DC 20005; copies of the Minimal Medium
ONPG-MUG Method as set forth in the article
' 'National Field Evaluation of a Defined Substrate
Method for the Simultaneous Enumeration of
Total Coliforms and Esherichia coli from Drinking
Water: Comparison with the Standard Multiple
Tube Fermentation Method" (Edberg et al.), Ap-
plied and Environmental Microbiology, Volume
54, pp. 1595-1601, June 1988 (as amended under
Erratum, Applied and Environmental Microbi-
ology, Volume 54, p. 3197, December, 1988), may
65
-------
§141.74
be obtained from the American Water Works As-
sociation Research Foundation, 6666 West Quincy
Avenue, Denver, Colorado, 80235; and copies of
the Indigo Method as set forth in the article "De-
termination of Ozone in Water by the Indigo
Method" (Bader and Hoigne), may be obtained
from Ozone Science & Engineering, Pergamon
Press Ltd., Fairview Park, Elmsford, New York
10523. Copies may be inspected at the U.S. Envi-
ronmental Protection Agency, Room EB15, 401 M
Street, SW., Washington, DC 20460 or at the Of-
fice of the Federal Register, 800 North Capitol
Street, NW., suite 700, Washington, DC.
(1) Public water systems must conduct analysis
of pH and temperature in accordance with one of
the methods listed at § 141.23(k)(l). Public water
systems must conduct analysis of total coliforms,
fecal coliforms, heterotrophic bacteria, and turbid-
ity in accordance with one of the following analyt-
ical methods and by using analytical test proce-
dures contained in Technical Notes on Drinking
Water Methods, EPA-600/R-94-173, October
1994, which is available at NTIS PB95-104766.
Organism
Total Coliforms2.
Fecal Coliforms2
Heterotrophic bac-
teria2.
Turbidity
Methodology
Total Coliform Fer-
mentation Tech-
nique3'4-5.
Total Coliform
Membrane Filter
Technique.
ONPG-MugTest6
Fecal Coliform
Procedure7.
Fecal Coliform
Membrane Filter
Procedure.
Pour Plate method
Nephelometric
Method.
Nephelometric
Method.
Great Lakes Instru-
ments.
Citation 1
9221 A, B, C
9222A, B, C
9223
9221 E
9222D
921 5B
21 SOB
180.1 8
Method 29
1 Except where noted, all methods refer to the 18th edition
of Standard Methods for the Examination of Water and
Wastewater, 1992, American Public Health Association, 1015
Fifteenth Street NW, Washington, D.C. 20005.
2The time from sample collection to initiation of analysis
may not exceed 8 hours. Systems are encouraged but not re-
quired to hold samples below 10°C during transit.
3 Lactose broth, as commercially available, may be used in
lieu of lauryl tryptose broth, if the system conducts at least 25
parallel tests between this medium and lauryl tryptose broth
using the water normally tested, and this comparison dem-
onstrates that the false positive rate and false negative rate
for total coliforms, using lactose broth, is less than 10 percent.
4 Media should cover inverted tubes at least one-half to two-
thirds after the sample is added.
5 No requirement exists to run the completed phase on 10
percent of all total coliform-positive confirmed tubes.
6The ONPG-MUG Test is also known as the Autoanalysis
Colilert System.
7A-1 Broth may be held up to three months in a tightly
closed screwcap tube at 4°C.
8"Methods for the Determination of Inorganic Substances in
Environmental Samples", EPA-600/R-93-100, August 1993.
Available at NTIS, PB94-121811.
9GLI Method 2, "Turbidity", November 2, 1992, Great
Lakes Instruments, Inc., 8855 North 55th Street, Milwaukee,
Wisconsin 53223.
(2) Public water systems must measure residual
disinfectant concentrations with one of the analyt-
ical methods in the following table. The methods
are contained in the 18th edition of Standard
Methods for the Examination of Water and
Wastewater, 1992. Other analytical test procedures
are contained in Technical Notes on Drinking
Water Methods, EPA-600/R-94-173, October
1994, which is available at NTIS PB95-104766. If
approved by the State, residual disinfectant con-
centrations for free chlorine and combined chlo-
rine also may be measured by using DPD colori-
metric test kits. Free and total chlorine residuals
may be measured continuously by adapting a spec-
ified chlorine residual method for use with a con-
tinuous monitoring instrument provided the chem-
istry, accuracy, and precision remain same. Instru-
ments used for continuous monitoring must be
calibrated with a grab sample measurement at least
every five days, or with a protocol approved by
the State.
Free Chlo-
rine.
Total Chlo-
rine.
Chlorine Di-
oxide.
Methodology
Amperometric Titration
DPD Ferrous
Titrimetric.
DPD Colorimetric
Syringaldazine
(FACTS).
Amperometric Titration
Amperometric Titration
(low level measure-
ment).
DPD Ferrous
Titrimetric.
DPD Colorimetric
lodometric Electrode
Amperometric Titration
DPD Method
Amperometric Titration
Indigo Method
4500-CI D
4500-CI F
4500-CI G
4500-CI H
4500-CI D
4500-CI E
4500-CI F
4500-CIG
4500-CII
4500-CIO2 C
4500-CI02 D
4500-CIO2 E
4500-O3 B
(b) Monitoring requirements for systems that do
not provide filtration. A public water system that
uses a surface water source and does not provide
filtration treatment must begin monitoring, as
specified in this paragraph (b), beginning Decem-
ber 31, 1990, unless the State has determined that
filtration is required in writing pursuant to
§ 1412(b)(7)(C)(iii), in which case the State may
specify alternative monitoring requirements, as ap-
propriate, until filtration is in place. A public
water system that uses a ground water source
under the direct influence of surface water and
does not provide filtration treatment must begin
monitoring as specified in this paragraph (b) be-
ginning December 31, 1990, or 6 months after the
State determines that the ground water source is
under the direct influence of surface water, which-
ever is later, unless the State has determined that
filtration is required in writing pursuant to
66
-------
§141.74
§ 1412(b)(7)(C)(iii), in which case the State may
specify alternative monitoring requirements, as ap-
propriate, until filtration is in place.
(1) Fecal coliform or total coliform density
measurements as required by § 141.71(a)(l) must
be performed on representative source water sam-
ples immediately prior to the first or only point of
disinfectant application. The system must sample
for fecal or total coliforms at the following mini-
mum frequency each week the system serves
water to the public:
System size (persons served)
<500
501 to 3,300
3,301 to 10,000
1 0 001 to 25 000
>25.000
Samples/
week1
1
2
3
4
5
1 Must be taken on separate days.
Also, one fecal or total coliform density meas-
urement must be made every day the system
serves water to the public and the turbidity of the
source water exceeds 1 NTU (these samples count
towards the weekly coliform sampling require-
ment) unless the State determines that the system,
for logistical reasons outside the system's control,
cannot have the sample analyzed within 30 hours
of collection.
(2) Turbidity measurements as required by
§ 141.71(a)(2) must be performed on representa-
tive grab samples of source water immediately
prior to the first or only point of disinfectant ap-
plication every four hours (or more frequently)
that the system serves water to the public. A pub-
lic water system may substitute continuous turbid-
ity monitoring for grab sample monitoring if it
validates the continuous measurement for accuracy
on a regular basis using a protocol approved by
the State.
(3) The total inactivation ratio for each day that
the system is in operation must be determined
based on the CTggg values in tables 1.1-1.6, 2.1,
and 3.1 of this section, as appropriate. The param-
eters necessary to determine the total inactivation
ratio must be monitored as follows:
(i) The temperature of the disinfected water
must be measured at least once per day at each re-
sidual disinfectant concentration sampling point.
(ii) If the system uses chlorine, the pH of the
disinfected water must be measured at least once
per day at each chlorine residual disinfectant con-
centration sampling point.
(iii) The disinfectant contact time(s) ("T") must
be determined for each day during peak hourly
flow.
(iv) The residual disinfectant concentration(s)
("C") of the water before or at the first customer
must be measured each day during peak hourly
flow.
(v) If a system uses a disinfectant other than
chlorine, the system may demonstrate to the State,
through the use of a State-approved protocol for
on-site disinfection challenge studies or other in-
formation satisfactory to the State, that Clgg.g val-
ues other than those specified in tables 2.1 and 3.1
in this section other operational parameters are
adequate to demonstrate that the system is achiev-
ing the minimum inactivation rates required by
§ 141.72(a)(l).
TABLE 1.1—CT VALUES (CT99.9) FOR 99.9 PER-
CENT INACTIVATION OF GIARDIA LAMBLIA
CYSTS BY FREE CHLORINE AT 0.5 °C OR
LOWER1
Resid-
ual
(mg/l)
<0.4 ....
0.6
0.8
1.0
1.2
1.4
1.6
1.8
2.0
2.2
2.4
2.6
2.8
3.0
pH
<6.0
137
141
145
148
152
155
157
162
165
169
172
175
178
181
6.5
163
168
172
176
180
184
189
193
197
201
205
209
213
217
7.0
195
200
205
210
215
221
226
231
236
242
247
252
257
261
7.5
237
239
246
253
259
266
273
279
286
297
298
304
310
316
8.0
277
286
295
304
313
321
329
338
346
353
361
368
375
382
8.5
329
342
354
365
376
387
397
407
417
426
435
444
452
460
<9.0
390
407
422
437
451
464
477
489
500
511
522
533
543
552
1 These CT values achieve greater than a 99.99 percent in-
activation of viruses. CT values between the indicated pH val-
ues may be determined by linear interpolation. CT values be-
tween the indicated temperatures of different tables may be
determined by linear interpolation. If no interpolation is used,
use the CT99 9 value at the lower temperature and at the high-
er pH.
TABLE 1.2—CT VALUES (CT 99.9) for 99.9 PER-
CENT INACTIVATION OF GIARDIA LAMBLIA
CYSTS BY FREE CHLORINE AT 5.0 °C1
Free re-
pH
SlUUdl
(mg/l)
<0.4 ....
0.6
0.8
1.0
1.2
1.4
1.6
1.8
2.0
2.2
2.4
2.6
2.8
3.0
<6.0
97
100
103
105
107
109
111
114
116
118
120
122
124
126
6.5
117
120
122
125
127
130
132
135
138
140
143
146
148
151
7.0
139
143
146
149
152
155
158
162
165
169
172
175
178
182
7.5
166
171
175
179
183
187
192
196
200
204
209
213
217
221
8.0
198
204
210
216
221
227
232
238
243
248
253
258
263
268
8.5
236
244
252
260
267
274
281
287
294
300
306
312
318
324
<9.0
279
291
301
312
320
329
337
345
353
361
368
375
382
389
1 These CT values achieve greater than a 99.99 percent in-
activation of viruses. CT values between the indicated pH val-
ues may be determined by linear interpolation. CT values be-
tween the indicated temperatures of different tables may be
determined by linear interpolation. If no interpolation is used,
use the CT99.9 value at the lower temperature, and at the
higher pH.
67
-------
§141.74
TABLE 1.3—CT VALUES (CT 99.9) for 99.9 PER-
CENT INACTIVATION OF GlARDIA LAMBLIA
CYSTS BY FREE CHLORINE AT 10.0 °C1
Free re-
sidual
(mg/l)
<0.4 ....
0.6
0.8
1.0
1.2
1.4
1.6
1.8
2.0
2.2
2.4
2.6
2.8
3.0
PH
<6.0
73
75
78
79
80
82
83
86
87
89
90
92
93
95
6.5
88
90
92
94
95
98
99
101
104
105
107
110
111
113
7.0
104
107
110
112
114
116
119
122
124
127
129
131
134
137
7.5
125
128
131
134
137
140
144
147
150
153
157
160
163
166
8.0
149
153
158
162
166
170
174
179
182
186
190
194
197
201
8.5
177
183
189
195
200
206
211
215
221
225
230
234
239
243
<9.0
209
218
226
234
240
247
253
259
265
271
276
281
287
292
1 These CT values achieve greater than a 99.99 percent in-
activation of viruses. CT values between the indicated pH val-
ues may be determined by linear interpolation. CT values be-
tween the indicated temperatures of different tables may be
determined by linear interpolation. If no interpolation is used,
use the CT99.9 value at the lower temperature, and at the
higher pH.
TABLE 1.4—CT VALUES (CT 99.9) for 99.9 PER-
CENT INACTIVATION OF GIARDIA LAMBLIA
CYSTS BY FREE CHLORINE AT 15.0 °C1
Free re-
sidual
(mg/l)
<0.4 ....
0.6
0.8
1.0
1.2
1.4
1.6
1.8
2.0
2.2
2.4
2.6
2.8
3.0
pH
<6.0
49
50
52
53
54
55
56
57
58
59
60
61
62
63
6.5
59
60
61
63
64
65
66
68
69
70
72
73
74
76
7.0
70
72
73
75
76
78
79
81
83
85
86
88
89
91
7.5
83
86
88
90
92
94
96
98
100
102
105
107
109
111
8.0
99
102
105
108
111
114
116
119
122
124
127
129
132
134
8.5
118
122
126
130
134
137
141
144
147
150
153
156
159
162
<9.0
140
146
151
156
160
165
169
173
177
181
184
188
191
195
1 These CT values achieve greater than a 99.99 percent in-
activation of viruses. CT values between the indicated pH val-
ues may be determined by linear interpolation. CT values be-
tween the indicated temperatures of different tables may be
determined by linear interpolation. If no interpolation is used,
use the CT99.9 value at the lower temperature, and at the
higher pH.
TABLE 1.5—CT Values (CT99.9) FOR 99.9 PER-
CENT INACTIVATION OF GIARDIA LAMBLIA
CYSTS BY FREE CHLORINE AT 20°C1
Free re-
sidual
(mg/l)
<0.4 ...
0.6
0.8
1.0
1.2
1.4
1.6
1.8
2.0
2.2
2.4
2.6
2.8
3.0
PH
<6.0
36
38
39
39
40
41
42
43
44
44
45
46
47
47
6.5
44
45
46
47
48
49
50
51
52
53
54
55
56
57
7.0
52
54
55
56
57
58
59
61
62
63
65
66
67
68
7.5
62
64
66
67
69
70
72
74
75
77
78
80
81
83
8.0
74
77
79
81
83
85
87
89
91
93
95
97
99
101
8.5
89
92
95
98
100
103
105
108
110
113
115
117
119
122
<9.0
105
109
113
117
120
123
126
129
132
135
138
141
143
146
1 These CT values achieve greater than a 99.99 percent in-
activation of viruses. CT values between the indicated pH val-
ues may be determined by linear interpolation. CT values be-
tween the indicated temperatures of different tables may be
determined by linear interpolation. If no interpolation is used,
use the CT99.9 value at the lower temperature, and at the
higher pH.
TABLE 1.6—CT Values (CT99.9) FOR 99.9 PER-
CENT INACTIVATION OF GIARDIA LAMBLIA
CYSTS BY FREE CHLORINE AT 25°C1 AND
HIGHER
Free re-
sidual
(mg/l)
<0.4 ...
0.6
0.8
1.0
1.2
1.4
1.6
1.8
2.0
2.2
2.4
2.6
2.8
3.0
pH
<6.0
24
25
26
26
27
27
28
29
29
30
30
31
31
32
6.5
29
30
31
31
32
33
33
34
35
35
36
37
37
38
7.0
35
36
37
37
38
39
40
41
41
42
43
44
45
46
7.5
42
43
44
45
46
47
48
49
50
51
52
53
54
55
8.0
50
51
53
54
55
57
58
60
61
62
63
65
66
67
8.5
59
61
63
65
67
69
70
72
74
75
77
78
80
81
<9.0
70
73
75
78
80
82
84
86
88
90
92
94
96
97
1 These CT values achieve greater than a 99.99 percent in-
activation of viruses. CT values between the indicated pH val-
ues may be determined by linear interpolation. CT values be-
tween the indicated temperatures of different tables may be
determined by linear interpolation. If no interpolation is used,
use the CT99.9 value at the lower temperature, and at the
higher pH.
TABLE 2.1—CT VALUES (CT99.9) FOR 99.9 PERCENT INACTIVATION OF GIARDIA LAMBLIA CYSTS BY
CHLORINE DIOXIDE AND OZONEI
Ozone
Temperature
< 1°C
63
2.9
5°C
26
1.9
10°C
23
1.4
15°C
19
0.95
20 °C
15
0.72
>25°C
11
0.48
1 These CT values achieve greater than 99.99 percent inactivation of viruses. CT values between the indicated temperatures
may be determined by linear interpolation. If no interpolation is used, use the CT99.9 value at the lower temperature for determin-
ing CT99.9 values between indicated temperatures.
68
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§141.74
TABLE 3.1—CT VALUES (CT 99.9) FOR 99.9
PERCENT INACTIVATION OF GIARDIA LAMBLIA
CYSTS BY CHLORAMINESI
Temperature
< 1 °C
3,800
5°C
2,200
10 °C
1,850
15 °C
1,500
20 °C
1,100
25 °C
750
1 These values are for pH values of 6 to 9. These CT val-
ues may be assumed to achieve greater than 99.99 percent
inactivation of viruses only if chlorine is added and mixed in
the water prior to the addition of ammonia. If this condition is
not met, the system must demonstrate, based on on-site stud-
ies or other information, as approved by the State, that the
system is achieving at least 99.99 percent inactivation of vi-
ruses. CT values between the indicated temperatures may be
determined by linear interpolation. If no interpolation is used,
use the CT999 value at the lower temperature for determining
CT999 values between indicated temperatures.
(4) The total inactivation ratio must be cal-
culated as follows:
(i) If the system uses only one point of dis-
infectant application, the system may determine
the total inactivation ratio based on either of the
following two methods:
(A) One inactivation ratio (CTcalc/CTgg.g) is de-
termined before or at the first customer during
peak hourly flow and if the CTcalc/CTgg 9 > 1.0,
the 99.9 percent Giardia lamblia inactivation re-
quirement has been achieved; or
(B) Successive CTcalc/CTgg g values, represent-
ing sequential inactivation ratios, are determined
between the point of disinfectant application and a
point before or at the first customer during peak
hourly flow. Under this alternative, the following
method must be used to calculate the total inac-
tivation ratio:
EC02JY92.060
lamblia inactivation requirement has been
achieved.
(ii) If the system uses more than one point of
disinfectant application before or at the first cus-
tomer, the system must determine the CT value of
each disinfection sequence immediately prior to
the next point of disinfectant application during
peak hourly flow. The CTcalc/CTggg value of
each sequence and
CTcalc
CT9!
must be calculated using the method in para-
graph (b)(4)(i)(B) of this section to determine if
the system is in compliance with § 142.72(a).
(iii) Although not required, the total percent in-
activation for a system with one or more points of
residual disinfectant concentration monitoring may
be calculated by solving the following equation:
Percent inactiva-
tion
where z=3x
= 100
10Z
CTcalc
CT9<
(5) The residual disinfectant concentration of
the water entering the distribution system must be
monitored continuously, and the lowest value must
be recorded each day, except that if there is a fail-
ure in the continuous monitoring equipment, grab
sampling every 4 hours may be conducted in lieu
of continuous monitoring, but for no more than 5
working days following the failure of the equip-
ment, and systems serving 3,300 or fewer persons
may take grab samples in lieu of providing contin-
uous monitoring on an ongoing basis at the fre-
quencies prescribed below:
System size by population
<500
501 to 1 000
1 001 to 2 500
2.501 to 3.300
Samples/
day1
1
2
3
4
1 The day's samples cannot be taken at the same time. The
sampling intervals are subject to State review and approval.
If at any time the residual disinfectant concentra-
tion falls below 0.2 mg/1 in a system using grab
sampling in lieu of continuous monitoring, the sys-
tem must take a grab sample every 4 hours until
the residual concentration is equal to or greater
than 0.2 mg/1.
(6)(i) The residual disinfectant concentration
must be measured at least at the same points in
the distribution system and at the same time as
total coliforms are sampled, as specified in
§ 141.21, except that the State may allow a public
water system which uses both a surface water
source or a ground water source under direct influ-
ence of surface water, and a ground water source,
to take disinfectant residual samples at points
other than the total coliform sampling points if the
State determines that such points are more rep-
resentative of treated (disinfected) water quality
within the distribution system. Heterotrophic bac-
teria, measured as heterotrophic plate count (HPC)
as specified in paragraph (a)(3) of this section,
may be measured in lieu of residual disinfectant
concentration.
(ii) If the State determines, based on site-spe-
cific considerations, that a system has no means
for having a sample transported and analyzed for
HPC by a certified laboratory under the requisite
time and temperature conditions specified by para-
graph (a)(3) of this section and that the system is
providing adequate disinfection in the distribution
69
-------
§141.75
system, the requirements of paragraph (b)(6)(i) of
this section do not apply to that system.
(c) Monitoring requirements for systems using
filtration treatment. A public water system that
uses a surface water source or a ground water
source under the influence of surface water and
provides filtration treatment must monitor in ac-
cordance with this paragraph (c) beginning June
29, 1993, or when filtration is installed, whichever
is later.
(1) Turbidity measurements as required by
§ 141.73 must be performed on representative sam-
ples of the system's filtered water every four
hours (or more frequently) that the system serves
water to the public. A public water system may
substitute continuous turbidity monitoring for grab
sample monitoring if it validates the continuous
measurement for accuracy on a regular basis using
a protocol approved by the State. For any systems
using slow sand filtration or filtration treatment
other than conventional treatment, direct filtration,
or diatomaceous earth filtration, the State may re-
duce the sampling frequency to once per day if it
determines that less frequent monitoring is suffi-
cient to indicate effective filtration performance.
For systems serving 500 or fewer persons, the
State may reduce the turbidity sampling frequency
to once per day, regardless of the type of filtration
treatment used, if the State determines that less
frequent monitoring is sufficient to indicate effec-
tive filtration performance.
(2) The residual disinfectant concentration of
the water entering the distribution system must be
monitored continuously, and the lowest value must
be recorded each day, except that if there is a fail-
ure in the continuous monitoring equipment, grab
sampling every 4 hours may be conducted in lieu
of continuous monitoring, but for no more than 5
working days following the failure of the equip-
ment, and systems serving 3,300 or fewer persons
may take grab samples in lieu of providing contin-
uous monitoring on an ongoing basis at the fre-
quencies each day prescribed below:
System size by population
+500
501 to 1 000
1,001 to 2,500
2,501 to 3,300
Samples/
day1
1
2
3
4
1 The day's samples cannot be taken at the same time. The
sampling intervals are subject to State review and approval.
If at any time the residual disinfectant concentra-
tion falls below 0.2 mg/1 in a system using grab
sampling in lieu of continuous monitoring, the sys-
tem must take a grab sample every 4 hours until
the residual disinfectant concentration is equal to
or greater than 0.2 mg/1.
(3)(i) The residual disinfectant concentration
must be measured at least at the same points in
the distribution system and at the same time as
total coliforms are sampled, as specified in
§ 141.21, except that the State may allow a public
water system which uses both a surface water
source or a ground water source under direct influ-
ence of surface water, and a ground water source
to take disinfectant residual samples at points
other than the total coliform sampling points if the
State determines that such points are more rep-
resentative of treated (disinfected) water quality
within the distribution system. Heterotrophic bac-
teria, measured as heterotrophic plate count (HPC)
as specified in paragraph (a)(3) of this section,
may be measured in lieu of residual disinfectant
concentration.
(ii) If the State determines, based on site-spe-
cific considerations, that a system has no means
for having a sample transported and analyzed for
HPC by a certified laboratory under the requisite
time and temperature conditions specified by para-
graph (a)(3) of this section and that the system is
providing adequate disinfection in the distribution
system, the requirements of paragraph (c)(3)(i) of
this section do not apply to that system.
[54 FR 27527, June 29, 1989, as amended at 59 FR
62470, Dec. 5, 1994; 60 FR 34086, June 29, 1995]
§141.75 Reporting and recordkeeping
requirements.
(a) A public water system that uses a surface
water source and does not provide filtration treat-
ment must report monthly to the State the infor-
mation specified in this paragraph (a) beginning
December 31, 1990, unless the State has deter-
mined that filtration is required in writing pursuant
to section 1412(b)(7)(C)(iii), in which case the
State may specify alternative reporting require-
ments, as appropriate, until filtration is in place. A
public water system that uses a ground water
source under the direct influence of surface water
and does not provide filtration treatment must re-
port monthly to the State the information specified
in this paragraph (a) beginning December 31,
1990, or 6 months after the State determines that
the ground water source is under the direct influ-
ence of surface water, whichever is later, unless
the State has determined that filtration is required
in writing pursuant to § 1412(b)(7)(C)(iii), in
which case the State may specify alternative re-
porting requirements, as appropriate, until filtration
is in place.
(1) Source water quality information must be re-
ported to the State within 10 days after the end of
each month the system serves water to the public.
Information that must be reported includes:
(i) The cumulative number of months for which
results are reported.
(ii) The number of fecal and/or total coliform
samples, whichever are analyzed during the month
70
-------
§141.75
(if a system monitors for both, only fecal coli-
forms must be reported), the dates of sample col-
lection, and the dates when the turbidity level ex-
ceeded 1 NTU.
(iii) The number of samples during the month
that had equal to or less than 20/100 ml fecal coli-
forms and/or equal to or less than 100/100 ml total
coliforms, whichever are analyzed.
(iv) The cumulative number of fecal or total
coliform samples, whichever are analyzed, during
the previous six months the system served water
to the public.
(v) The cumulative number of samples that had
equal to or less than 20/100 ml fecal coliforms or
equal to or less than 100/100 ml total coliforms,
whichever are analyzed, during the previous six
months the system served water to the public.
(vi) The percentage of samples that had equal to
or less than 20/100 ml fecal coliforms or equal to
or less than 100/100 ml total coliforms, whichever
are analyzed, during the previous six months the
system served water to the public.
(vii) The maximum turbidity level measured
during the month, the date(s) of occurrence for
any measurement(s) which exceeded 5 NTU, and
the date(s) the occurrence(s) was reported to the
State.
(viii) For the first 12 months of recordkeeping,
the dates and cumulative number of events during
which the turbidity exceeded 5 NTU, and after one
year of recordkeeping for turbidity measurements,
the dates and cumulative number of events during
which the turbidity exceeded 5 NTU in the pre-
vious 12 months the system served water to the
public.
(ix) For the first 120 months of recordkeeping,
the dates and cumulative number of events during
which the turbidity exceeded 5 NTU, and after 10
years of recordkeeping for turbidity measurements,
the dates and cumulative number of events during
which the turbidity exceeded 5 NTU in the pre-
vious 120 months the system served water to the
public.
(2) Disinfection information specified in
§ 141.74(b) must be reported to the State within 10
days after the end of each month the system
serves water to the public. Information that must
be reported includes:
(i) For each day, the lowest measurement of re-
sidual disinfectant concentration in mg/1 in water
entering the distribution system.
(ii) The date and duration of each period when
the residual disinfectant concentration in water en-
tering the distribution system fell below 0.2 mg/1
and when the State was notified of the occurrence.
(iii) The daily residual disinfectant
concentration(s) (in mg/1) and disinfectant contact
time(s) (in minutes) used for calculating the CT
value(s).
(iv) If chlorine is used, the daily
measurement(s) of pH of disinfected water follow-
ing each point of chlorine disinfection.
(v) The daily measurement(s) of water tempera-
ture in °C following each point of disinfection.
(vi) The daily CTcalc and CTcalc/CTgg.g values
for each disinfectant measurement or sequence and
the sum of all CTcalc/CTgg.g values ((CTcalc/
CTgg.g)) before or at the first customer.
(vii) The daily determination of whether dis-
infection achieves adequate Giardia cyst and virus
inactivation, i.e., whether (CTcalc/CTggg) is at
least 1.0 or, where disinfectants other than chlo-
rine are used, other indicator conditions that the
State determines are appropriate, are met.
(viii) The following information on the samples
taken in the distribution system in conjunction
with total coliform monitoring pursuant to
§141.72:
(A) Number of instances where the residual dis-
infectant concentration is measured;
(B) Number of instances where the residual dis-
infectant concentration is not measured but
heterotrophic bacteria plate count (HPC) is meas-
ured;
(C) Number of instances where the residual dis-
infectant concentration is measured but not de-
tected and no HPC is measured;
(D) Number of instances where the residual dis-
infectant concentration is detected and where HPC
is >500/ml;
(E) Number of instances where the residual dis-
infectant concentration is not measured and HPC
is >500/ml;
(F) For the current and previous month the sys-
tem served water to the public, the value of "V"
in the following formula:
c+d+e
V= X100
a+b
where
a=the value in paragraph (a)(2)(viii)(A) of this section,
b=the value in paragraph (a)(2)(viii)(B) of this section,
c=the value in paragraph (a)(2)(viii)(C) of this section,
d=the value in paragraph (a)(2)(viii)(D) of this section,
and
e=the value in paragraph (a)(2)(viii)(E) of this section.
(G) If the State determines, based on site-spe-
cific considerations, that a system has no means
for having a sample transported and analyzed for
HPC by a certified laboratory under the requisite
time and temperature conditions specified by
§ 141.74(a)(3) and that the system is providing
adequate disinfection in the distribution system,
the requirements of paragraph (a)(2)(viii) (A)-(F)
of this section do not apply to that system.
(ix) A system need not report the data listed in
paragraphs (a)(2) (i), and (iii)-(vi) of this section
71
-------
§141.75
if all data listed in paragraphs (a)(2) (i)-(viii) of
this section remain on file at the system, and the
State determines that:
(A) The system has submitted to the State all
the information required by paragraphs (a)(2) (i)-
(viii) of this section for at least 12 months; and
(B) The State has determined that the system is
not required to provide filtration treatment.
(3) No later than ten days after the end of each
Federal fiscal year (September 30), each system
must provide to the State a report which summa-
rizes its compliance with all watershed control
program requirements specified in § 141.71(b)(2).
(4) No later than ten days after the end of each
Federal fiscal year (September 30), each system
must provide to the State a report on the on-site
inspection conducted during that year pursuant to
§ 141.71(b)(3), unless the on-site inspection was
conducted by the State. If the inspection was con-
ducted by the State, the State must provide a copy
of its report to the public water system.
(5)(i) Each system, upon discovering that a wa-
terborne disease outbreak potentially attributable to
that water system has occurred, must report that
occurrence to the State as soon as possible, but no
later than by the end of the next business day.
(ii) If at any time the turbidity exceeds 5 NTU,
the system must inform the State as soon as pos-
sible, but no later than the end of the next busi-
ness day.
(iii) If at any time the residual falls below 0.2
mg/1 in the water entering the distribution system,
the system must notify the State as soon as pos-
sible, but no later than by the end of the next busi-
ness day. The system also must notify the State by
the end of the next business day whether or not
the residual was restored to at least 0.2 mg/1 with-
in 4 hours.
(b) A public water system that uses a surface
water source or a ground water source under the
direct influence of surface water and provides fil-
tration treatment must report monthly to the State
the information specified in this paragraph (b) be-
ginning June 29, 1993, or when filtration is in-
stalled, whichever is later.
(1) Turbidity measurements as required by
§ 141.74(c)(l) must be reported within 10 days
after the end of each month the system serves
water to the public. Information that must be re-
ported includes:
(i) The total number of filtered water turbidity
measurements taken during the month.
(ii) The number and percentage of filtered water
turbidity measurements taken during the month
which are less than or equal to the turbidity limits
specified in § 141.73 for the filtration technology
being used.
(iii) The date and value of any turbidity meas-
urements taken during the month which exceed 5
NTU.
(2) Disinfection information specified in
§ 141.74(c) must be reported to the State within 10
days after the end of each month the system
serves water to the public. Information that must
be reported includes:
(i) For each day, the lowest measurement of re-
sidual disinfectant concentration in mg/1 in water
entering the distribution system.
(ii) The date and duration of each period when
the residual disinfectant concentration in water en-
tering the distribution system fell below 0.2 mg/1
and when the State was notified of the occurrence.
(iii) The following information on the samples
taken in the distribution system in conjunction
with total coliform monitoring pursuant to
§141.72:
(A) Number of instances where the residual dis-
infectant concentration is measured;
(B) Number of instances where the residual dis-
infectant concentration is not measured but
heterotrophic bacteria plate count (HPC) is meas-
ured;
(C) Number of instances where the residual dis-
infectant concentration is measured but not de-
tected and no HPC is measured;
(D) Number of instances where no residual dis-
infectant concentration is detected and where HPC
is >500/ml;
(E) Number of instances where the residual dis-
infectant concentration is not measured and HPC
is >500/ml;
(F) For the current and previous month the sys-
tem serves water to the public, the value of "V"
in the following formula:
c+d+e
V= X100
a+b
where
a=the value in paragraph (b)(2)(iii)(A) of this section,
b=the value in paragraph (b)(2)(iii)(B) of this section,
c=the value in paragraph (b)(2)(iii)(C) of this section,
d=the value in paragraph (b)(2)(iii)(D) of this section, and
e=the value in paragraph (b)(2)(iii)(E) of this section.
(G) If the State determines, based on site-spe-
cific considerations, that a system has no means
for having a sample transported and analyzed for
HPC by a certified laboratory within the requisite
time and temperature conditions specified by
§ 141.74(a)(3) and that the system is providing
adequate disinfection in the distribution system,
the requirements of paragraph (b)(2)(iii) (A)-(F)
of this section do not apply.
(iv) A system need not report the data listed in
paragraph (b)(2)(i) of this section if all data listed
in paragraphs (b)(2) (i)-(iii) of this section remain
72
-------
§141.80
on file at the system and the State determines that
the system has submitted all the information re-
quired by paragraphs (b)(2) (i)-(iii) of this section
for at least 12 months.
(3)(i) Each system, upon discovering that a wa-
terborne disease outbreak potentially attributable to
that water system has occurred, must report that
occurrence to the State as soon as possible, but no
later than by the end of the next business day.
(ii) If at any time the turbidity exceeds 5 NTU,
the system must inform the State as soon as pos-
sible, but no later than the end of the next busi-
ness day.
(iii) If at any time the residual falls below 0.2
mg/1 in the water entering the distribution system,
the system must notify the State as soon as pos-
sible, but no later than by the end of the next busi-
ness day. The system also must notify the State by
the end of the next business day whether or not
the residual was restored to at least 0.2 mg/1 with-
in 4 hours.
Subpart I—Control of Lead and
Copper
SOURCE: 56 FR 26548, June 7, 1991, unless otherwise
noted.
§141.80 General requirements.
(a) Applicability and effective dates. (1) The re-
quirements of this subpart I constitute the national
primary drinking water regulations for lead and
copper. Unless otherwise indicated, each of the
provisions of this subpart applies to community
water systems and non-transient, non-community
water systems (hereinafter referred to as "water
systems" or "systems").
(2) The requirements set forth in §§ 141.86 to
141.91 shall take effect on July 7, 1991. The re-
quirements set forth in §§141.80 to 141.85 shall
take effect on December 7, 1992.
(b) Scope. These regulations establish a treat-
ment technique that includes requirements for cor-
rosion control treatment, source water treatment,
lead service line replacement, and public edu-
cation. These requirements are triggered, in some
cases, by lead and copper action levels measured
in samples collected at consumers' taps.
(c) Lead and copper action levels. (1) The lead
action level is exceeded if the concentration of
lead in more than 10 percent of tap water samples
collected during any monitoring period conducted
in accordance with §141.86 is greater than 0.015
mg/L (i.e., if the "90th percentile" lead level is
greater than 0.015 mg/L).
(2) The copper action level is exceeded if the
concentration of copper in more than 10 percent of
tap water samples collected during any monitoring
period conducted in accordance with §141.86 is
greater than 1.3 mg/L (i.e., if the "90th percent-
ile" copper level is greater than 1.3 mg/L).
(3) The 90th percentile lead and copper levels
shall be computed as follows:
(i) The results of all lead or copper samples
taken during a monitoring period shall be placed
in ascending order from the sample with the low-
est concentration to the sample with the highest
concentration. Each sampling result shall be as-
signed a number, ascending by single integers be-
ginning with the number 1 for the sample with the
lowest contaminant level. The number assigned to
the sample with the highest contaminant level
shall be equal to the total number of samples
taken.
(ii) The number of samples taken during the
monitoring period shall be multiplied by 0.9.
(iii) The contaminant concentration in the num-
bered sample yielded by the calculation in para-
graph (c)(3)(ii) is the 90th percentile contaminant
level.
(iv) For water systems serving fewer than 100
people that collect 5 samples per monitoring pe-
riod, the 90th percentile is computed by taking the
average of the highest and second highest con-
centrations.
(d) Corrosion control treatment requirements.
(1) All water systems shall install and operate op-
timal corrosion control treatment as defined in
§141.2.
(2) Any water system that complies with the ap-
plicable corrosion control treatment requirements
specified by the State under §§141.81 and 141.82
shall be deemed in compliance with the treatment
requirement contained in paragraph (d)(l) of this
section.
(e) Source water treatment requirements. Any
system exceeding the lead or copper action level
shall implement all applicable source water treat-
ment requirements specified by the State under
§141.83.
(f) Lead service line replacement requirements.
Any system exceeding the lead action level after
implementation of applicable corrosion control and
source water treatment requirements shall com-
plete the lead service line replacement require-
ments contained in § 141.84.
(g) Public education requirements. Any system
exceeding the lead action level shall implement
the public education requirements contained in
§141.85.
(h) Monitoring and analytical requirements. Tap
water monitoring for lead and copper, monitoring
for water quality parameters, source water mon-
itoring for lead and copper, and analyses of the
monitoring results under this subpart shall be com-
pleted in compliance with §§141.86, 141.87,
141.88, and 141.89.
73
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§141.81
(i) Reporting requirements. Systems shall report
to the State any information required by the treat-
ment provisions of this subpart and § 141.90.
(j) Recordkeeping requirements. Systems shall
maintain records in accordance with § 141.91.
(k) Violation of national primary drinking water
regulations. Failure to comply with the applicable
requirements of §§ 141.80-141.91, including re-
quirements established by the State pursuant to
these provisions, shall constitute a violation of the
national primary drinking water regulations for
lead and/or copper.
[56 FR 26548, June 7, 1991; 57 FR 28788, June 29,
1992]
§141.81 Applicability of corrosion con-
trol treatment steps to small, me-
dium-size and large water systems.
(a) Systems shall complete the applicable corro-
sion control treatment requirements described in
§141.82 by the deadlines established in this sec-
tion.
(1) A large system (serving >50,000 persons)
shall complete the corrosion control treatment
steps specified in paragraph (d) of this section, un-
less it is deemed to have optimized corrosion con-
trol under paragraph (b)(2) or (b)(3) of this sec-
tion.
(2) A small system (serving <3300 persons) and
a medium-size system (serving >3,300 and
<50,000 persons) shall complete the corrosion con-
trol treatment steps specified in paragraph (e) of
this section, unless it is deemed to have optimized
corrosion control under paragraph (b)(l), (b)(2), or
(b)(3) of this section.
(b) A system is deemed to have optimized cor-
rosion control and is not required to complete the
applicable corrosion control treatment steps identi-
fied in this section if the system satisfies one of
the following criteria:
(1) A small or medium-size water system is
deemed to have optimized corrosion control if the
system meets the lead and copper action levels
during each of two consecutive six-month mon-
itoring periods conducted in accordance with
§141.86.
(2) Any water system may be deemed by the
State to have optimized corrosion control treat-
ment if the system demonstrates to the satisfaction
of the State that it has conducted activities equiva-
lent to the corrosion control steps applicable to
such system under this section. If the State makes
this determination, it shall provide the system with
written notice explaining the basis for its decision
and shall specify the water quality control param-
eters representing optimal corrosion control in ac-
cordance with § 141.82(f). A system shall provide
the State with the following information in order
to support a determination under this paragraph:
(i) The results of all test samples collected for
each of the water quality parameters in
§141.82(c)(3).
(ii) A report explaining the test methods used
by the water system to evaluate the corrosion con-
trol treatments listed in § 141.82(c)(l), the results
of all tests conducted, and the basis for the sys-
tem's selection of optimal corrosion control treat-
ment;
(iii) A report explaining how corrosion control
has been installed and how it is being maintained
to insure minimal lead and copper concentrations
at consumers' taps; and
(iv) The results of tap water samples collected
in accordance with § 141.86 at least once every six
months for one year after corrosion control has
been installed.
(3) Any water system is deemed to have opti-
mized corrosion control if it submits results of tap
water monitoring conducted in accordance with
§141.86 and source water monitoring conducted
in accordance with §141.88 that demonstrates for
two consecutive six-month monitoring periods that
the difference between the 90th percentile tap
water lead level computed under § 141.80(c)(3),
and the highest source water lead concentration, is
less than the Practical Quantitation Level for lead
specified in § 141.89(a)(l)(ii).
(c) Any small or medium-size water system that
is required to complete the corrosion control steps
due to its exceedance of the lead or copper action
level may cease completing the treatment steps
whenever the system meets both action levels dur-
ing each of two consecutive monitoring periods
conducted pursuant to § 141.86 and submits the re-
sults to the State. If any such water system there-
after exceeds the lead or copper action level dur-
ing any monitoring period, the system (or the
State, as the case may be) shall recommence com-
pletion of the applicable treatment steps, beginning
with the first treatment step which was not pre-
viously completed in its entirety. The State may
require a system to repeat treatment steps pre-
viously completed by the system where the State
determines that this is necessary to implement
properly the treatment requirements of this section.
The State shall notify the system in writing of
such a determination and explain the basis for its
decision. The requirement for any small- or me-
dium-size system to implement corrosion control
treatment steps in accordance with paragraph (e)
of this section (including systems deemed to have
optimized corrosion control under paragraph (b)(l)
of this section) is triggered whenever any small-
er medium-size system exceeds the lead or copper
action level.
(d) Treatment steps and deadlines for large sys-
tems. Except as provided in paragraph (b) (2) and
(3) of this section, large systems shall complete
74
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§141.82
the following corrosion control treatment steps
(described in the referenced portions of §§ 141.82,
141.86, and 141.87) by the indicated dates.
(1) Step 1: The system shall conduct initial
monitoring (§ 141.86(d)(l) and § 141.87(b)) during
two consecutive six-month monitoring periods by
January 1, 1993.
(2) Step 2: The system shall complete corrosion
control studies (§ 141.82(c)) by July 1, 1994.
(3) Step 3: The State shall designate optimal
corrosion control treatment (§141.82(d)) by Janu-
ary 1, 1995.
(4) Step 4: The system shall install optimal cor-
rosion control treatment (§ 141.82(e)) by January
1, 1997.
(5) Step 5: The system shall complete follow-
up sampling (§ 141.86(d)(2) and §141.87(c)) by
January 1, 1998.
(6) Step 6: The State shall review installation of
treatment and designate optimal water quality con-
trol parameters (§ 141.82(f)) by July 1, 1998.
(7) Step 7: The system shall operate in compli-
ance with the State-specified optimal water quality
control parameters (§141.82(g)) and continue to
conduct tap sampling (§ 141.86(d)(3) and
§141.87(d)).
(e) Treatment Steps and deadlines for small and
medium-size systems. Except as provided in para-
graph (b) of this section, small and medium-size
systems shall complete the following corrosion
control treatment steps (described in the referenced
portions of §§ 141.82, 141.86 and 141.87) by the
indicated time periods.
(1) Step 1: The system shall conduct initial tap
sampling (§ 141.86(d)(l) and § 141.87(b)) until the
system either exceeds the lead or copper action
level or becomes eligible for reduced monitoring
under § 141.86(d)(4). A system exceeding the lead
or copper action level shall recommend optimal
corrosion control treatment (§ 141.82(a)) within six
months after it exceeds one of the action levels.
(2) Step 2: Within 12 months after a system ex-
ceeds the lead or copper action level, the State
may require the system to perform corrosion con-
trol studies (§141.82(b)). If the State does not re-
quire the system to perform such studies, the State
shall specify optimal corrosion control treatment
(§ 141.82(d)) within the following timeframes:
(i) For medium-size systems, within 18 months
after such system exceeds the lead or copper ac-
tion level,
(ii) For small systems, within 24 months after
such system exceeds the lead or copper action
level.
(3) Step 3: If the State requires a system to per-
form corrosion control studies under step 2, the
system shall complete the studies (§141.82(c))
within 18 months after the State requires that such
studies be conducted.
(4) Step 4: If the system has performed corro-
sion control studies under step 2, the State shall
designate optimal corrosion control treatment
(§141.82(d)) within 6 months after completion of
step 3.
(5) Step 5: The system shall install optimal cor-
rosion control treatment (§141.82(e)) within 24
months after the State designates such treatment.
(6) Step 6: The system shall complete follow-
up sampling (§ 141.86(d)(2) and § 141.87(c)) with-
in 36 months after the State designates optimal
corrosion control treatment.
(7) Step 7: The State shall review the system's
installation of treatment and designate optimal
water quality control parameters (§141.82(f))
within 6 months after completion of step 6.
(8) Step 8: The system shall operate in compli-
ance with the State-designated optimal water qual-
ity control parameters (§141.82(g)) and continue
to conduct tap sampling (§ 141.86(d)(3) and
§141.87(d)).
[56 FR 26548, June 7, 1991, as amended at 59 FR 33862,
June 30, 1994]
§141.82 Description of corrosion con-
trol treatment requirements.
Each system shall complete the corrosion con-
trol treatment requirements described below which
are applicable to such system under § 141.81.
(a) System recommendation regarding corrosion
control treatment. Based upon the results of lead
and copper tap monitoring and water quality pa-
rameter monitoring, small and medium-size water
systems exceeding the lead or copper action level
shall recommend installation of one or more of the
corrosion control treatments listed in paragraph
(c)(l) of this section which the system believes
constitutes optimal corrosion control for that sys-
tem. The State may require the system to conduct
additional water quality parameter monitoring in
accordance with §141.87(b) to assist the State in
reviewing the system's recommendation.
(b) State decision to require studies of corrosion
control treatment (applicable to small and me-
dium-size systems). The State may require any
small or medium-size system that exceeds the lead
or copper action level to perform corrosion control
studies under paragraph (c) of this section to iden-
tify optimal corrosion control treatment for the
system.
(c) Performance of corrosion control studies.
(1) Any public water system performing corrosion
control studies shall evaluate the effectiveness of
each of the following treatments, and, if appro-
priate, combinations of the following treatments to
identify the optimal corrosion control treatment for
that system:
(i) Alkalinity and pH adjustment;
(ii) Calcium hardness adjustment; and
75
-------
§141.82
(iii) The addition of a phosphate or silicate
based corrosion inhibitor at a concentration suffi-
cient to maintain an effective residual concentra-
tion in all test tap samples.
(2) The water system shall evaluate each of the
corrosion control treatments using either pipe rig/
loop tests, metal coupon tests, partial-system tests,
or analyses based on documented analogous treat-
ments with other systems of similar size, water
chemistry and distribution system configuration.
(3) The water system shall measure the follow-
ing water quality parameters in any tests con-
ducted under this paragraph before and after eval-
uating the corrosion control treatments listed
above:
(i) Lead;
(ii) Copper;
(iii) pH;
(iv) Alkalinity;
(v) Calcium;
(vi) Conductivity;
(vii) Orthophosphate (when an inhibitor contain-
ing a phosphate compound is used);
(viii) Silicate (when an inhibitor containing a
silicate compound is used);
(ix) Water temperature.
(4) The water system shall identify all chemical
or physical constraints that limit or prohibit the
use of a particular corrosion control treatment and
document such constraints with at least one of the
following:
(i) Data and documentation showing that a par-
ticular corrosion control treatment has adversely
affected other water treatment processes when
used by another water system with comparable
water quality characteristics; and/or
(ii) Data and documentation demonstrating that
the water system has previously attempted to
evaluate a particular corrosion control treatment
and has found that the treatment is ineffective or
adversely affects other water quality treatment
processes.
(5) The water system shall evaluate the effect of
the chemicals used for corrosion control treatment
on other water quality treatment processes.
(6) On the basis of an analysis of the data gen-
erated during each evaluation, the water system
shall recommend to the State in writing the treat-
ment option that the corrosion control studies indi-
cate constitutes optimal corrosion control treatment
for that system. The water system shall provide a
rationale for its recommendation along with all
supporting documentation specified in paragraphs
(c) (1) through (5) of this section.
(d) State designation of optimal corrosion con-
trol treatment. (1) Based upon consideration of
available information including, where applicable,
studies performed under paragraph (c) of this sec-
tion and a system's recommended treatment alter-
native, the State shall either approve the corrosion
control treatment option recommended by the sys-
tem, or designate alternative corrosion control
treatment(s) from among those listed in paragraph
(c)(l) of this section. When designating optimal
treatment the State shall consider the effects that
additional corrosion control treatment will have on
water quality parameters and on other water qual-
ity treatment processes.
(2) The State shall notify the system of its deci-
sion on optimal corrosion control treatment in
writing and explain the basis for this determina-
tion. If the State requests additional information to
aid its review, the water system shall provide the
information.
(e) Installation of optimal corrosion control.
Each system shall properly install and operate
throughout its distribution system the optimal cor-
rosion control treatment designated by the State
under paragraph (d) of this section.
(f) State review of treatment and specification of
optimal water quality control parameters. The
State shall evaluate the results of all lead and cop-
per tap samples and water quality parameter sam-
ples submitted by the water system and determine
whether the system has properly installed and op-
erated the optimal corrosion control treatment des-
ignated by the State in paragraph (d) of this sec-
tion. Upon reviewing the results of tap water and
water quality parameter monitoring by the system,
both before and after the system installs optimal
corrosion control treatment, the State shall des-
ignate:
(1) A minimum value or a range of values for
pH measured at each entry point to the distribution
system;
(2) A minimum pH value, measured in all tap
samples. Such value shall be equal to or greater
than 7.0, unless the State determines that meeting
a pH level of 7.0 is not technologically feasible or
is not necessary for the system to optimize corro-
sion control;
(3) If a corrosion inhibitor is used, a minimum
concentration or a range of concentrations for the
inhibitor, measured at each entry point to the dis-
tribution system and in all tap samples, that the
State determines is necessary to form a passivating
film on the interior walls of the pipes of the dis-
tribution system;
(4) If alkalinity is adjusted as part of optimal
corrosion control treatment, a minimum concentra-
tion or a range of concentrations for alkalinity,
measured at each entry point to the distribution
system and in all tap samples;
(5) If calcium carbonate stabilization is used as
part of corrosion control, a minimum concentration
or a range of concentrations for calcium, measured
in all tap samples.
76
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§141.83
The values for the applicable water quality control
parameters listed above shall be those that the
State determines to reflect optimal corrosion con-
trol treatment for the system. The State may des-
ignate values for additional water quality control
parameters determined by the State to reflect opti-
mal corrosion control for the system. The State
shall notify the system in writing of these deter-
minations and explain the basis for its decisions.
(g) Continued operation and monitoring. All
systems shall maintain water quality parameter
values at or above minimum values or within
ranges designated by the State under paragraph (f)
of this section in each sample collected under
§141.87(d). If the water quality parameter value
of any sample is below the minimum value or out-
side the range designated by the State, then the
system is out of compliance with this paragraph.
As specified in §141.87(d), the system may take
a confirmation sample for any water quality pa-
rameter value no later than 3 days after the first
sample. If a confirmation sample is taken, the re-
sult must be averaged with the first sampling re-
sult and the average must be used for any compli-
ance determinations under this paragraph. States
have discretion to delete results of obvious sam-
pling errors from this calculation.
(h) Modification of State treatment decisions.
Upon its own initiative or in response to a request
by a water system or other interested party, a State
may modify its determination of the optimal corro-
sion control treatment under paragraph (d) of this
section or optimal water quality control parameters
under paragraph (f) of this section. A request for
modification by a system or other interested party
shall be in writing, explain why the modification
is appropriate, and provide supporting documenta-
tion. The State may modify its determination
where it concludes that such change is necessary
to ensure that the system continues to optimize
corrosion control treatment. A revised determina-
tion shall be made in writing, set forth the new
treatment requirements, explain the basis for the
State's decision, and provide an implementation
schedule for completing the treatment modifica-
tions.
(i) Treatment decisions by EPA in lieu of the
State. Pursuant to the procedures in §142.19, the
EPA Regional Administrator may review treatment
determinations made by a State under paragraphs
(d), (f), or (h) of this section and issue federal
treatment determinations consistent with the re-
quirements of those paragraphs where the Re-
gional Administrator finds that:
(1) A State has failed to issue a treatment deter-
mination by the applicable deadlines contained in
§141.81,
(2) A State has abused its discretion in a sub-
stantial number of cases or in cases affecting a
substantial population, or
(3) The technical aspects of a State's determina-
tion would be indefensible in an expected Federal
enforcement action taken against a system.
§141.83 Source water treatment re-
quirements.
Systems shall complete the applicable source
water monitoring and treatment requirements (de-
scribed in the referenced portions of paragraph (b)
of this section, and in §§141.86, and 141.88) by
the following deadlines.
(a) Deadlines for completing source water treat-
ment steps—(1) Step 1: A system exceeding the
lead or copper action level shall complete lead and
copper source water monitoring (§141.88(b)) and
make a treatment recommendation to the State
(§141.83(b)(l)) within 6 months after exceeding
the lead or copper action level.
(2) Step 2: The State shall make a determination
regarding source water treatment (§ 141.83(b)(2))
within 6 months after submission of monitoring
results under step 1.
(3) Step 3: If the State requires installation of
source water treatment, the system shall install the
treatment (§ 141.83(b)(3)) within 24 months after
completion of step 2.
(4) Step 4: The system shall complete follow-
up tap water monitoring (§ 141.86(d)(2) and source
water monitoring (§ 141.88(c)) within 36 months
after completion of step 2.
(5) Step 5: The State shall review the system's
installation and operation of source water treat-
ment and specify maximum permissible source
water levels (§ 141.83(b)(4)) within 6 months after
completion of step 4.
(6) Step 6: The system shall operate in compli-
ance with the State-specified maximum permis-
sible lead and copper source water levels
(§ 141.83(b)(4)) and continue source water mon-
itoring (§141.88(d)).
(b) Description of source water treatment re-
quirements—(1) System treatment recommenda-
tion. Any system which exceeds the lead or copper
action level shall recommend in writing to the
State the installation and operation of one of the
source water treatments listed in paragraph (b)(2)
of this section. A system may recommend that no
treatment be installed based upon a demonstration
that source water treatment is not necessary to
minimize lead and copper levels at users' taps.
(2) State determination regarding source water
treatment. The State shall complete an evaluation
of the results of all source water samples submit-
ted by the water system to determine whether
source water treatment is necessary to minimize
lead or copper levels in water delivered to users'
77
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§141.84
taps. If the State determines that treatment is need-
ed, the State shall either require installation and
operation of the source water treatment rec-
ommended by the system (if any) or require the
installation and operation of another source water
treatment from among the following: Ion ex-
change, reverse osmosis, lime softening or coagu-
lation/filtration. If the State requests additional in-
formation to aid in its review, the water system
shall provide the information by the date specified
by the State in its request. The State shall notify
the system in writing of its determination and set
forth the basis for its decision.
(3) Installation of source water treatment. Each
system shall properly install and operate the
source water treatment designated by the State
under paragraph (b)(2) of this section.
(4) State review of source water treatment and
specification of maximum permissible source water
levels. The State shall review the source water
samples taken by the water system both before
and after the system installs source water treat-
ment, and determine whether the system has prop-
erly installed and operated the source water treat-
ment designated by the State. Based upon its re-
view, the State shall designate the maximum per-
missible lead and copper concentrations for fin-
ished water entering the distribution system. Such
levels shall reflect the contaminant removal capa-
bility of the treatment properly operated and main-
tained. The State shall notify the system in writing
and explain the basis for its decision.
(5) Continued operation and maintenance. Each
water system shall maintain lead and copper levels
below the maximum permissible concentrations
designated by the State at each sampling point
monitored in accordance with §141.88. The sys-
tem is out of compliance with this paragraph if the
level of lead or copper at any sampling point is
greater than the maximum permissible concentra-
tion designated by the State.
(6) Modification of State treatment decisions.
Upon its own initiative or in response to a request
by a water system or other interested party, a State
may modify its determination of the source water
treatment under paragraph (b)(2) of this section, or
maximum permissible lead and copper concentra-
tions for finished water entering the distribution
system under paragraph (b)(4) of this section. A
request for modification by a system or other in-
terested party shall be in writing, explain why the
modification is appropriate, and provide support-
ing documentation. The State may modify its de-
termination where it concludes that such change is
necessary to ensure that the system continues to
minimize lead and copper concentrations in source
water. A revised determination shall be made in
writing, set forth the new treatment requirements,
explain the basis for the State's decision, and pro-
vide an implementation schedule for completing
the treatment modifications.
(7) Treatment decisions by EPA in lieu of the
State. Pursuant to the procedures in §142.19, the
EPA Regional Administrator may review treatment
determinations made by a State under paragraphs
(b) (2), (4), or (6) of this section and issue Federal
treatment determinations consistent with the re-
quirements of those paragraphs where the Admin-
istrator finds that:
(i) A State has failed to issue a treatment deter-
mination by the applicable deadlines contained in
§141.83(a),
(ii) A state has abused its discretion in a sub-
stantial number of cases or in cases affecting a
substantial population, or
(iii) The technical aspects of a State's deter-
mination would be indefensible in an expected
Federal enforcement action taken against a system.
§141.84 Lead service line replacement
requirements.
(a) Systems that fail to meet the lead action
level in tap samples taken pursuant to
§ 141.86(d)(2), after installing corrosion control
and/or source water treatment (whichever sampling
occurs later), shall replace lead service lines in ac-
cordance with the requirements of this section. If
a system is in violation of § 141.81 or § 141.83 for
failure to install source water or corrosion control
treatment, the State may require the system to
commence lead service line replacement under this
section after the date by which the system was re-
quired to conduct monitoring under § 141.86(d)(2)
has passed.
(b) A system shall replace annually at least 7
percent of the initial number of lead service lines
in its distribution system. The initial number of
lead service lines is the number of lead lines in
place at the time the replacement program begins.
The system shall identify the initial number of
lead service lines in its distribution system based
upon a materials evaluation, including the evalua-
tion required under §141.86(a). The first year of
lead service line replacement shall begin on the
date the action level was exceeded in tap sampling
referenced in paragraph (a) of this section.
(c) A system is not required to replace an indi-
vidual lead service line if the lead concentration in
all service line samples from that line, taken pur-
suant to § 141.86(b)(3), is less than or equal to
0.015 mg/L.
(d) A water system shall replace the entire serv-
ice line (up to the building inlet) unless it dem-
onstrates to the satisfaction of the State under
paragraph (e) of this section that it controls less
than the entire service line. In such cases, the sys-
tem shall replace the portion of the line which the
State determines is under the system's control. The
78
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§141.85
system shall notify the user served by the line that
the system will replace the portion of the service
line under its control and shall offer to replace the
building owner's portion of the line, but is not re-
quired to bear the cost of replacing the building
owner's portion of the line. For buildings where
only a portion of the lead service line is replaced,
the water system shall inform the resident(s) that
the system will collect a first flush tap water sam-
ple after partial replacement of the service line is
completed if the resident(s) so desire. In cases
where the resident(s) accept the offer, the system
shall collect the sample and report the results to
the resident(s) within 14 days following partial
lead service line replacement.
(e) A water system is presumed to control the
entire lead service line (up to the building inlet)
unless the system demonstrates to the satisfaction
of the State, in a letter submitted under
§ 141.90(e)(4), that it does not have any of the fol-
lowing forms of control over the entire line (as de-
fined by state statutes, municipal ordinances, pub-
lic service contracts or other applicable legal au-
thority): authority to set standards for construction,
repair, or maintenance of the line, authority to re-
place, repair, or maintain the service line, or own-
ership of the service line. The State shall review
the information supplied by the system and deter-
mine whether the system controls less than the en-
tire service line and, in such cases, shall determine
the extent of the system's control. The State's de-
termination shall be in writing and explain the
basis for its decision.
(f) The State shall require a system to replace
lead service lines on a shorter schedule than that
required by this section, taking into account the
number of lead service lines in the system, where
such a shorter replacement schedule is feasible.
The State shall make this determination in writing
and notify the system of its finding within 6
months after the system is triggered into lead serv-
ice line replacement based on monitoring ref-
erenced in paragraph (a) of this section.
(g) Any system may cease replacing lead serv-
ice lines whenever first draw samples collected
pursuant to § 141.86(b)(2) meet the lead action
level during each of two consecutive monitoring
periods and the system submits the results to the
State. If first draw tap samples collected in any
such system thereafter exceeds the lead action
level, the system shall recommence replacing lead
service lines pursuant to paragraph (b) of this sec-
tion.
(h) To demonstrate compliance with paragraphs
(a) through (d) of this section, a system shall re-
port to the State the information specified in
§ 141.90(e).
[56 FR 26548, June 7, 1991; 57 FR 28788, June 29,
19921
§141.85 Public education and supple-
mental monitoring requirements.
A water system that exceeds the lead action
level based on tap water samples collected in ac-
cordance with §141.86 shall deliver the public
education materials contained in paragraphs (a)
and (b) of this section in accordance with the re-
quirements in paragraph (c) of this section.
(a) Content of written materials. A water system
shall include the following text in all of the print-
ed materials it distributes through its lead public
education program. Any additional information
presented by a system shall be consistent with the
information below and be in plain English that can
be understood by laypersons.
(1) Introduction. The United States Environ-
mental Protection Agency (EPA) and [insert name
of water supplier] are concerned about lead in
your drinking water. Although most homes have
very low levels of lead in their drinking water,
some homes in the community have lead levels
above the EPA action level of 15 parts per billion
(ppb), or 0.015 milligrams of lead per liter of
water (mg/L). Under Federal law we are required
to have a program in place to minimize lead in
your drinking water by [insert date when corrosion
control will be completed for your system]. This
program includes corrosion control treatment,
source water treatment, and public education. We
are also required to replace each lead service line
that we control if the line contributes lead con-
centrations of more than 15 ppb after we have
completed the comprehensive treatment program.
If you have any questions about how we are carry-
ing out the requirements of the lead regulation
please give us a call at [insert water system's
phone number]. This brochure explains the simple
steps you can take to protect you and your family
by reducing your exposure to lead in drinking
water.
(2) Health effects of lead. Lead is a common
metal found throughout the environment in lead-
based paint, air, soil, household dust, food, certain
types of pottery porcelain and pewter, and water.
Lead can pose a significant risk to your health if
too much of it enters your body. Lead builds up
in the body over many years and can cause dam-
age to the brain, red blood cells and kidneys. The
greatest risk is to young children and pregnant
women. Amounts of lead that won't hurt adults
can slow down normal mental and physical devel-
opment of growing bodies. In addition, a child at
play often comes into contact with sources of lead
contamination—like dirt and dust—that rarely af-
fect an adult. It is important to wash children's
hands and toys often, and to try to make sure they
only put food in their mouths.
79
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§141.85
(3) Lead in drinking water, (i) Lead in drinking
water, although rarely the sole cause of lead poi-
soning, can significantly increase a person's total
lead exposure, particularly the exposure of infants
who drink baby formulas and concentrated juices
that are mixed with water. The EPA estimates that
drinking water can make up 20 percent or more of
a person's total exposure to lead.
(ii) Lead is unusual among drinking water con-
taminants in that it seldom occurs naturally in
water supplies like rivers and lakes. Lead enters
drinking water primarily as a result of the corro-
sion, or wearing away, of materials containing
lead in the water distribution system and house-
hold plumbing. These materials include lead-based
solder used to join copper pipe, brass and chrome
plated brass faucets, and in some cases, pipes
made of lead that connect your house to the water
main (service lines). In 1986, Congress banned the
use of lead solder containing greater than 0.2%
lead, and restricted the lead content of faucets,
pipes and other plumbing materials to 8.0%.
(iii) When water stands in lead pipes or plumb-
ing systems containing lead for several hours or
more, the lead may dissolve into your drinking
water. This means the first water drawn from the
tap in the morning, or later in the afternoon after
returning from work or school, can contain fairly
high levels of lead.
(4) Steps you can take in the home to reduce
exposure to lead in drinking water, (i) Despite our
best efforts mentioned earlier to control water
corrosivity and remove lead from the water sup-
ply, lead levels in some homes or buildings can be
high. To find out whether you need to take action
in your own home, have your drinking water test-
ed to determine if it contains excessive concentra-
tions of lead. Testing the water is essential be-
cause you cannot see, taste, or smell lead in drink-
ing water. Some local laboratories that can provide
this service are listed at the end of this booklet.
For more information on having your water tested,
please call [insert phone number of water system].
(ii) If a water test indicates that the drinking
water drawn from a tap in your home contains
lead above 15 ppb, then you should take the fol-
lowing precautions:
(A) Let the water run from the tap before using
it for drinking or cooking any time the water in
a faucet has gone unused for more than six hours.
The longer water resides in your home's plumbing
the more lead it may contain. Flushing the tap
means running the cold water faucet until the
water gets noticeably colder, usually about 15-30
seconds. If your house has a lead service line to
the water main, you may have to flush the water
for a longer time, perhaps one minute, before
drinking. Although toilet flushing or showering
flushes water through a portion of your home's
plumbing system, you still need to flush the water
in each faucet before using it for drinking or cook-
ing. Flushing tap water is a simple and inexpen-
sive measure you can take to protect your family's
health. It usually uses less than one or two gallons
of water and costs less than [insert a cost estimate
based on flushing two times a day for 30 days]
per month. To conserve water, fill a couple of bot-
tles for drinking water after flushing the tap, and
whenever possible use the first flush water to
wash the dishes or water the plants. If you live in
a high-rise building, letting the water flow before
using it may not work to lessen your risk from
lead. The plumbing systems have more, and some-
times larger pipes than smaller buildings. Ask your
landlord for help in locating the source of the lead
and for advice on reducing the lead level.
(B) Try not to cook with, or drink water from
the hot water tap. Hot water can dissolve more
lead more quickly than cold water. If you need hot
water, draw water from the cold tap and heat it on
the stove.
(C) Remove loose lead solder and debris from
the plumbing materials installed in newly con-
structed homes, or homes in which the plumbing
has recently been replaced, by removing the faucet
strainers from all taps and running the water from
3 to 5 minutes. Thereafter, periodically remove the
strainers and flush out any debris that has accumu-
lated over time.
(D) If your copper pipes are joined with lead
solder that has been installed illegally since it was
banned in 1986, notify the plumber who did the
work and request that he or she replace the lead
solder with lead-free solder. Lead solder looks dull
gray, and when scratched with a key looks shiny.
In addition, notify your State [insert name of de-
partment responsible for enforcing the Safe Drink-
ing Water Act in your State] about the violation.
(E) Determine whether or not the service line
that connects your home or apartment to the water
main is made of lead. The best way to determine
if your service line is made of lead is by either
hiring a licensed plumber to inspect the line or by
contacting the plumbing contractor who installed
the line. You can identify the plumbing contractor
by checking the city's record of building permits
which should be maintained in the files of the [in-
sert name of department that issues building per-
mits]. A licensed plumber can at the same time
check to see if your homes's plumbing contains
lead solder, lead pipes, or pipe fittings that contain
lead. The public water system that delivers water
to your home should also maintain records of the
materials located in the distribution system. If the
service line that connects your dwelling to the
water main contributes more than 15 ppb to drink-
ing water, after our comprehensive treatment pro-
gram is in place, we are required to replace the
80
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§141.85
line. If the line is only partially controlled by the
[insert name of the city, county, or water system
that controls the line], we are required to provide
you with information on how to replace your por-
tion of the service line, and offer to replace that
portion of the line at your expense and take a fol-
low-up tap water sample within 14 days of the re-
placement. Acceptable replacement alternatives in-
clude copper, steel, iron, and plastic pipes.
(F) Have an electrician check your wiring. If
grounding wires from the electrical system are at-
tached to your pipes, corrosion may be greater.
Check with a licensed electrician or your local
electrical code to determine if your wiring can be
grounded elsewhere. DO NOT attempt to change
the wiring yourself because improper grounding
can cause electrical shock and fire hazards.
(iii) The steps described above will reduce the
lead concentrations in your drinking water. How-
ever, if a water test indicates that the drinking
water coming from your tap contains lead con-
centrations in excess of 15 ppb after flushing, or
after we have completed our actions to minimize
lead levels, then you may want to take the follow-
ing additional measures:
(A) Purchase or lease a home treatment device.
Home treatment devices are limited in that each
unit treats only the water that flows from the fau-
cet to which it is connected, and all of the devices
require periodic maintenance and replacement. De-
vices such as reverse osmosis systems or distillers
can effectively remove lead from your drinking
water. Some activated carbon filters may reduce
lead levels at the tap, however all lead reduction
claims should be investigated. Be sure to check
the actual performance of a specific home treat-
ment device before and after installing the unit.
(B) Purchase bottled water for drinking and
cooking.
(iv) You can consult a variety of sources for ad-
ditional information. Your family doctor or pedia-
trician can perform a blood test for lead and pro-
vide you with information about the health effects
of lead. State and local government agencies that
can be contacted include:
(A) [insert the name of city or county depart-
ment of public utilities] at [insert phone number]
can provide you with information about your com-
munity's water supply, and a list of local labora-
tories that have been certified by EPA for testing
water quality;
(B) [insert the name of city or county depart-
ment that issues building permits] at [insert phone
number] can provide you with information about
building permit records that should contain the
names of plumbing contractors that plumbed your
home; and
(C) [insert the name of the State Department of
Public Health] at [insert phone number] or the [in-
sert the name of the city or county health depart-
ment] at [insert phone number] can provide you
with information about the health effects of lead
and how you can have your child's blood tested.
(v) The following is a list of some State ap-
proved laboratories in your area that you can call
to have your water tested for lead. [Insert names
and phone numbers of at least two laboratories].
(b) Content of broadcast materials. A water sys-
tem shall include the fol-
lowing information in all public service announce-
ments submitted under its lead public education
program to television and radio stations for broad-
casting:
(1) Why should everyone want to know the
facts about lead and drinking water? Because
unhealthy amounts of lead can enter drinking
water through the plumbing in your home. That's
why I urge you to do what I did. I had my water
tested for [insert free or $ per sample]. You can
contact the [insert the name of the city or water
system] for information on testing and on simple
ways to reduce your exposure to lead in drinking
water.
(2) To have your water tested for lead, or to get
more information about this public health concern,
please call [insert the phone number of the city or
water system].
(c) Delivery of a public education program. (1)
In communities where a significant proportion of
the population speaks a language other than Eng-
lish, public education materials shall be commu-
nicated in the appropriate language(s).
(2) A community water system that fails to
meet the lead action level on the basis of tap
water samples collected in accordance with
§ 141.86 shall, within 60 days:
(i) Insert notices in each customer's water utility
bill containing the information in paragraph (a) of
this section, along with the following alert on the
water bill itself in large print: "SOME HOMES
IN THIS COMMUNITY HAVE ELEVATED
LEAD LEVELS IN THEIR DRINKING WATER.
LEAD CAN POSE A SIGNIFICANT RISK TO
YOUR HEALTH. PLEASE READ THE EN-
CLOSED NOTICE FOR FURTHER INFORMA-
TION."
(ii) Submit the information in paragraph (a) of
this section to the editorial departments of the
major daily and weekly newspapers circulated
throughout the community.
(iii) Deliver pamphlets and/or brochures that
contain the public education materials in para-
graphs (a) (2) and (4) of this section to facilities
and organizations, including the following:
(A) Public schools and/or local school boards;
(B) City or county health department;
(C) Women, Infants, and Children and/or Head
Start Program(s) whenever available;
81
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§141.86
(D) Public and private hospitals and/or clinics;
(E) Pediatricians;
(F) Family planning clinics; and
(G) Local welfare agencies.
(iv) Submit the public service announcement in
paragraph (b) of this section to at least five of the
radio and television stations with the largest audi-
ences that broadcast to the community served by
the water system.
(3) A community water system shall repeat the
tasks contained in paragraphs (c)(2) (i), (ii) and
(iii) of this section every 12 months, and the tasks
contained in paragraphs (c)(2)(iv) of this section
every 6 months for as long as the system exceeds
the lead action level.
(4) Within 60 days after it exceeds the lead ac-
tion level, a non-transient non-community water
system shall deliver the public education materials
contained in paragraphs (a) (1), (2), and (4) of this
section as follows:
(i) Post informational posters on lead in drink-
ing water in a public place or common area in
each of the buildings served by the system; and
(ii) Distribute informational pamphlets and/or
brochures on lead in drinking water to each person
served by the non-transient non-community water
system.
(5) A non-transient non-community water sys-
tem shall repeat the tasks contained in paragraph
(c)(4) of this section at least once during each cal-
endar year in which the system exceeds the lead
action level.
(6) A water system may discontinue delivery of
public education materials if the system has met
the lead action level during the most recent six-
month monitoring period conducted pursuant to
§141.86. Such a system shall recommence public
education in accordance with this section if it sub-
sequently exceeds the lead action level during any
monitoring period.
(d) Supplemental monitoring and notification of
results. A water system that fails to meet the lead
action level on the basis of tap samples collected
in accordance with §141.86 shall offer to sample
the tap water of any customer who requests it. The
system is not required to pay for collecting or ana-
lyzing the sample, nor is the system required to
collect and analyze the sample itself.
[56 FR 26548, June 7, 1991; 57 FR 28788, June 29,
1992]
§141.86 Monitoring requirements for
lead and copper in tap water.
(a) Sample site location. (1) By the applicable
date for commencement of monitoring under para-
graph (d)(l) of this section, each water system
shall complete a materials evaluation of its dis-
tribution system in order to identify a pool of tar-
geted sampling sites that meets the requirements
of this section, and which is sufficiently large to
ensure that the water system can collect the num-
ber of lead and copper tap samples required in
paragraph (c) of this section. All sites from which
first draw samples are collected shall be selected
from this pool of targeted sampling sites. Sam-
pling sites may not include faucets that have
point-of-use or point-
of-entry treatment devices designed to remove in-
organic contaminants.
(2) A water system shall use the information on
lead, copper, and galvanized steel that it is re-
quired to collect under §141.42(d) of this part
[special monitoring for corrosivity characteristics]
when conducting a materials evaluation. When an
evaluation of the information collected pursuant to
§ 141.42(d) is insufficient to locate the requisite
number of lead and copper sampling sites that
meet the targeting criteria in paragraph (a) of this
section, the water system shall review the sources
of information listed below in order to identify a
sufficient number of sampling sites. In addition,
the system shall seek to collect such information
where possible in the course of its normal oper-
ations (e.g., checking service line materials when
reading water meters or performing maintenance
activities):
(i) All plumbing codes, permits, and records in
the files of the building department(s) which indi-
cate the plumbing materials that are installed with-
in publicly and privately owned structures con-
nected to the distribution system;
(ii) All inspections and records of the distribu-
tion system that indicate the material composition
of the service connections that connect a structure
to the distribution system; and
(iii) All existing water quality information,
which includes the results of all prior analyses of
the system or individual structures connected to
the system, indicating locations that may be par-
ticularly susceptible to high lead or copper con-
centrations.
(3) The sampling sites selected for a community
water system's sampling pool ("tier 1 sampling
sites") shall consist of single family structures
that:
(i) Contain copper pipes with lead solder in-
stalled after 1982 or contain lead pipes; and/or
(ii) Are served by a lead service line. When
multiple-family residences comprise at least 20
percent of the structures served by a water system,
the system may include these types of structures
in its sampling pool.
(4) Any community water system with insuffi-
cient tier 1 sampling sites shall complete its sam-
pling pool with "tier 2 sampling sites", consisting
of buildings, including multiple-family residences
that:
82
-------
§141.86
(i) Contain copper pipes with lead solder in-
stalled after 1982 or contain lead pipes; and/or
(ii) Are served by a lead service line.
(5) Any community water system with insuffi-
cient tier 1 and tier 2 sampling sites shall com-
plete its sampling pool with "tier 3 sampling
sites", consisting of single family structures that
contain copper pipes with lead solder installed be-
fore 1983.
(6) The sampling sites selected for a non-tran-
sient noncommunity water system ("tier 1 sam-
pling sites") shall consist of buildings that:
(i) Contain copper pipes with lead solder in-
stalled after 1982 or contain lead pipes; and/or
(ii) Are served by a lead service line.
(7) A non-transient non-community water sys-
tem with insufficient tier 1 sites that meet the
targeting criteria in paragraph (a)(6) of this section
shall complete its sampling pool with sampling
sites that contain copper pipes with lead solder in-
stalled before 1983.
(8) Any water system whose sampling pool
does not consist exclusively of tier 1 sites shall
demonstrate in a letter submitted to the State
under § 141.90(a)(2) why a review of the informa-
tion listed in paragraph (a)(2) of this section was
inadequate to locate a sufficient number of tier 1
sites. Any community water system which in-
cludes tier 3 sampling sites in its sampling pool
shall demonstrate in such a letter why it was un-
able to locate a sufficient number of tier 1 and tier
2 sampling sites.
(9) Any water system whose distribution system
contains lead service lines shall draw 50 percent
of the samples it collects during each monitoring
period from sites that contain lead pipes, or copper
pipes with lead solder, and 50 percent of the sam-
ples from sites served by a lead service line. A
water system that cannot identify a sufficient num-
ber of sampling sites served by a lead service line
shall demonstrate in a letter submitted to the State
under § 141.90(a)(4) why the system was unable to
locate a sufficient number of such sites. Such a
water system shall collect first draw samples from
all of the sites identified as being served by such
lines.
(b) Sample collection methods. (1) All tap sam-
ples for lead and copper collected in accordance
with this subpart, with the exception of lead serv-
ice line samples collected under §141.84(c), shall
be first draw samples.
(2) Each first draw tap sample for lead and cop-
per shall be one liter in volume and have stood
motionless in the plumbing system of each sam-
pling site for at least six hours. First draw samples
from residential housing shall be collected from
the cold water kitchen tap or bathroom sink tap.
First-draw samples from a nonresidential building
shall be collected at an interior tap from which
water is typically drawn for consumption. First
draw samples may be collected by the system or
the system may allow residents to collect first
draw samples after instructing the residents of the
sampling procedures specified in this paragraph.
To avoid problems of residents handling nitric
acid, acidification of first draw samples may be
done up to 14 days after the sample is collected.
If the sample is not acidified immediately after
collection, then the sample must stand in the origi-
nal container for at least 28 hours after acidifica-
tion. If a system allows residents to perform sam-
pling, the system may not challenge, based on al-
leged errors in sample collection, the accuracy of
sampling results.
(3) Each service line sample shall be one liter
in volume and have stood motionless in the lead
service line for at least six hours. Lead service line
samples shall be collected in one of the following
three ways:
(i) At the tap after flushing the volume of water
between the tap and the lead service line. The vol-
ume of water shall be calculated based on the inte-
rior diameter and length of the pipe between the
tap and the lead service line;
(ii) Tapping directly into the lead service line;
or
(iii) If the sampling site is a building con-
structed as a single-family residence, allowing the
water to run until there is a significant change in
temperature which would be indicative of water
that has been standing in the lead service line.
(4) A water system shall collect each first draw
tap sample from the same sampling site from
which it collected a previous sample. If, for any
reason, the water system cannot gain entry to a
sampling site in order to collect a follow-up tap
sample, the system may collect the follow-up tap
sample from another sampling site in its sampling
pool as long as the new site meets the same
targeting criteria, and is within reasonable proxim-
ity of the original site.
(c) Number of samples. Water systems shall col-
lect at least one sample during each monitoring
period specified in paragraph (d) of this section
from the number of sites listed in the first column
below ("standard monitoring"). A system con-
ducting reduced monitoring under paragraph (d)(4)
of this section may collect one sample from the
number of sites specified in the second column
below during each monitoring period specified in
paragraph (d)(4) of this section.
System size (No. people
served)
>100,000
10,001-100,000
3 301 to 1 0 000
501 to 3 300
101 to 500
No. of sites
(standard
monitoring)
100
60
40
20
10
No. of sites
(reduced mon-
itoring)
50
30
20
10
5
83
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§141.86
System size (No. people
served)
<100
No. of sites
(standard
monitoring)
5
No. of sites
(reduced mon-
itoring)
5
(d) Timing of monitoring—(1) Initial tap sam-
pling.
The first six-month monitoring period for small,
medium-size and large systems shall begin on the
following dates:
System size (No. people served)
>50 000
3,301 to 50,000
<3.300
First six-month monitor-
ing period begins on
January 1 1992
July 1, 1992.
Julv 1. 1993.
(i) All large systems shall monitor during two
consecutive six-month periods.
(ii) All small and medium-size systems shall
monitor during each six-month monitoring period
until:
(A) The system exceeds the lead or copper ac-
tion level and is therefore required to implement
the corrosion control treatment requirements under
§141.81, in which case the system shall continue
monitoring in accordance with paragraph (d)(2) of
this section, or
(B) The system meets the lead and copper ac-
tion levels during two consecutive six-month mon-
itoring periods, in which case the system may re-
duce monitoring in accordance with paragraph
(d)(4) of this section.
(2) Monitoring after installation of corrosion
control and source water treatment, (i) Any large
system which installs optimal corrosion control
treatment pursuant to § 141.81(d)(4) shall monitor
during two consecutive six-month monitoring peri-
ods by the date specified in § 141.81(d)(5).
(ii) Any small or medium-size system which in-
stalls optimal corrosion control treatment pursuant
to § 141.81(e)(5) shall monitor during two con-
secutive six-month monitoring periods by the date
specified in § 141.81(e)(6).
(iii) Any system which installs source water
treatment pursuant to § 141.83(a)(3) shall monitor
during two consecutive six-month monitoring peri-
ods by the date specified in § 141.83(a)(4).
(3) Monitoring after State specifies water qual-
ity parameter values for optimal corrosion control.
After the State specifies the values for water qual-
ity control parameters under § 141.82(f), the sys-
tem shall monitor during each subsequent six-
month monitoring period, with the first monitoring
period to begin on the date the State specifies the
optimal values under § 141.82(f).
(4) Reduced monitoring, (i) A small or medium-
size water system that meets the lead and copper
action levels during each of two consecutive six-
month monitoring periods may reduce the number
of samples in accordance with paragraph (c) of
this section, and reduce the frequency of sampling
to once per year.
(ii) Any water system that maintains the range
of values for the water quality control parameters
reflecting optimal corrosion control treatment
specified by the State under § 141.82(f) during
each of two consecutive six-month monitoring pe-
riods may request that the State allow the system
to reduce the frequency of monitoring to once per
year and to reduce the number of lead and copper
samples in accordance with paragraph (c) of this
section. The State shall review the information
submitted by the water system and shall make its
decision in writing, setting forth the basis for its
determination. The State shall review, and where
appropriate, revise its determination when the sys-
tem submits new monitoring or treatment data, or
when other data relevant to the number and fre-
quency of tap sampling becomes available.
(iii) A small or medium-size water system that
meets the lead and copper action levels during
three consecutive years of monitoring may reduce
the frequency of monitoring for lead and copper
from annually to once every three years. Any
water system that maintains the range of values
for the water quality control parameters reflecting
optimal corrosion control treatment specified by
the State under §141.82(f) during three consecu-
tive years of monitoring may request that the State
allow the system to reduce the frequency of mon-
itoring from annually to once every three years.
The State shall review the information submitted
by the water system and shall make its decision in
writing, setting forth the basis for its determina-
tion. The State shall review, and where appro-
priate, revise its determination when the system
submits new monitoring or treatment data, or
when other data relevant to the number and fre-
quency of tap sampling becomes available.
(iv) A water system that reduces the number
and frequency of sampling shall collect these sam-
ples from sites included in the pool of targeted
sampling sites identified in paragraph (a) of this
section. Systems sampling annually or less fre-
quently shall conduct the lead and copper tap sam-
pling during the months of June, July, August or
September.
(v) A small- or medium-size water system sub-
ject to reduced monitoring that exceeds the lead or
copper action level shall resume sampling in ac-
cordance with paragraph (d)(3) of this section and
collect the number of samples specified for stand-
ard monitoring under paragraph (d) of this section.
Such system shall also conduct water quality pa-
rameter monitoring in accordance with §141.87
(b), (c) or (d) (as appropriate) during the monitor-
ing period in which it exceeded the action level.
84
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§141.87
Any water system subject to the reduced monitor-
ing frequency that fails to operate within the range
of values for the water quality parameters speci-
fied by the State under §141.82(f) shall resume
tap water sampling in accordance with paragraph
(d)(3) of this section and collect the number of
samples specified for standard monitoring under
paragraph (c) of this section.
(e) Additional monitoring by systems. The re-
sults of any monitoring conducted in addition to
the minimum requirements of this section shall be
considered by the system and the State in making
any determinations (i.e., calculating the 90th per-
centile lead or copper level) under this subpart.
[56 FR 26548, June 7, 1991; 56 FR 32113, July 15, 1991;
57 FR 28788, June 29, 1992]
§141.87 Monitoring requirements for
water quality parameters.
All large water systems, and all small- and me-
dium-size systems that exceed the lead or copper
action level shall monitor water quality parameters
in addition to lead and copper in accordance with
this section. The requirements of this section are
summarized in the table at the end of this section.
(a) General requirements—(1) Sample collec-
tion methods, (i) Tap samples shall be representa-
tive of water quality throughout the distribution
system taking into account the number of persons
served, the different sources of water, the different
treatment methods employed by the system, and
seasonal variability. Tap sampling under this sec-
tion is not required to be conducted at taps tar-
geted for lead and copper sampling under
§ 141.86(a). [Note: Systems may find it convenient
to conduct tap sampling for water quality param-
eters at sites used for coliform sampling under 40
CFR 141.21.]
(ii) Samples collected at the entry point(s) to the
distribution system shall be from locations rep-
resentative of each source after treatment. If a sys-
tem draws water from more than one source and
the sources are combined before distribution, the
system must sample at an entry point to the dis-
tribution system during periods of normal operat-
ing conditions (i.e., when water is representative
of all sources being used).
(2) Number of samples, (i) Systems shall collect
two tap samples for applicable water quality pa-
rameters during each monitoring period specified
under paragraphs (b) through (e) of this section
from the following number of sites.
System size (No. people served)
>100,000
10,001-100,000
3,301 to 10,000
501 to 3,300
No. of sites for
water quality
parameters
System size (No. people served)
1 01 to 500
<100
No. of sites for
water quality
parameters
1
1
25
10
3
2
(ii) Systems shall collect two samples for each
applicable water quality parameter at each entry
point to the distribution system during each mon-
itoring period specified in paragraph (b) of this
section. During each monitoring period specified
in paragraphs (c)-(e) of this section, systems shall
collect one sample for each applicable water qual-
ity parameter at each entry point to the distribution
system.
(b) Initial sampling All large water systems
shall measure the applicable water quality param-
eters as specified below at taps and at each entry
point to the distribution system during each six-
month monitoring period specified in
§ 141.86(d)(l). All small and medium-size systems
shall measure the applicable water quality param-
eters at the locations specified below during each
six-month monitoring period specified in
§ 141.86(d)(l) during which the system exceeds
the lead or copper action level.
(1) At taps:
(i) PH;
(ii) Alkalinity;
(iii) Orthophosphate, when an inhibitor contain-
ing a phosphate compound is used;
(iv) Silica, when an inhibitor containing a sili-
cate compound is used;
(v) Calcium;
(vi) Conductivity; and
(vii) Water temperature.
(2) At each entry point to the distribution sys-
tem: all of the applicable parameters listed in para-
graph (b)(l) of this section.
(c) Monitoring after installation of corrosion
control. Any large system which installs optimal
corrosion control treatment pursuant to
§ 141.81(d)(4) shall measure the water quality pa-
rameters at the locations and frequencies specified
below during each six-month monitoring period
specified in § 141.86(d)(2)(i). Any small or me-
dium-size system which installs optimal corrosion
control treatment shall conduct such monitoring
during each six-month monitoring period specified
in § 141.86(d)(2)(ii) in which the system exceeds
the lead or copper action level.
(1) At taps, two samples for:
(i) PH;
(ii) Alkalinity;
(iii) Orthophosphate, when an inhibitor contain-
ing a phosphate compound is used;
(iv) Silica, when an inhibitor containing a sili-
cate compound is used;
(v) Calcium, when calcium carbonate stabiliza-
tion is used as part of corrosion control.
85
-------
§141.87
(2) At each entry point to the distribution sys-
tem, one sample every two weeks (bi-weekly) for:
(i) PH;
(ii) When alkalinity is adjusted as part of opti-
mal corrosion control, a reading of the dosage rate
of the chemical used to adjust alkalinity, and the
alkalinity concentration; and
(iii) When a corrosion inhibitor is used as part
of optimal corrosion control, a reading of the dos-
age rate of the inhibitor used, and the concentra-
tion of orthophosphate or silica (whichever is ap-
plicable).
(d) Monitoring after State specifies water qual-
ity parameter values for optimal corrosion control.
After the State specifies the values for applicable
water quality control parameters reflecting optimal
corrosion control treatment under § 141.82(f), all
large systems shall measure the applicable water
quality parameters in accordance with paragraph
(c) of this section during each monitoring period
specified in § 141.86(d)(3). Any small or medium-
size system shall conduct such monitoring during
each monitoring period specified in § 141.86(d)(3)
in which the system exceeds the lead or copper
action level. The system may take a confirmation
sample for any water quality parameter value no
later than 3 days after the first sample. If a con-
firmation sample is taken, the result must be aver-
aged with the first sampling result and the average
must be used for any compliance determinations
under §141.82(g). States have discretion to delete
results of obvious sampling errors from this cal-
culation.
(e) Reduced monitoring. (1) Any water system
that maintains the range of values for the water
quality parameters reflecting optimal corrosion
control treatment during each of two consecutive
six-month monitoring periods under paragraph (d)
of this section shall continue monitoring at the
entry point(s) to the distribution system as speci-
fied in paragraph (c)(2) of this section. Such sys-
tem may collect two tap samples for applicable
water quality parameters from the following re-
duced number of sites during each six-month mon-
itoring period.
System size (No. of people served)
>100,000
1 0 001 to 1 00 000
3,301 to 10,000
501 to 3,300
1 01 to 500
<100
Reduced No.
of sites for
water quality
parameters
10
7
3
2
1
1
(2) Any water system that maintains the range
of values for the water quality parameters reflect-
ing optimal corrosion control treatment specified
by the State under §141.82(f) during three con-
secutive years of monitoring may reduce the fre-
quency with which it collects the number of tap
samples for applicable water quality parameters
specified in this paragraph (e)(l) of this section
from every six months to annually. Any water sys-
tem that maintains the range of values for the
water quality parameters reflecting optimal corro-
sion control treatment specified by the State under
§141.82(f) during three consecutive years of an-
nual monitoring under this paragraph may reduce
the frequency with which it collects the number of
tap samples for applicable water quality param-
eters specified in paragraph (e)(l) from annually
to every three years.
(3) A water system that conducts sampling an-
nually shall collect these samples evenly through-
out the year so as to reflect seasonal variability.
(4) Any water system subject to the reduced
monitoring frequency that fails to operate within
the range of values for the water quality param-
eters specified by the State in § 141.82(f) shall re-
sume tap water sampling in accordance with the
number and frequency requirements in paragraph
(d) of this section.
(f) Additional monitoring by systems. The re-
sults of any monitoring conducted in addition to
the minimum requirements of this section shall be
considered by the system and the State in making
any determinations (i.e., determining concentra-
tions of water quality parameters) under this sec-
tion or §141.82.
SUMMARY OF MONITORING REQUIREMENTS FOR WATER QUALITY PARAMETERS 1
Monitoring Period
Initial Monitoring
After Installation of Corrosion Control
Parameters2
pH, alkalinity, orthophosphate or silica3,
calcium, conductivity, temperature.
pH, alkalinity, orthophosphate or silica3,
calcium4.
Location
Taps and at entry
point(s) to dis-
tribution sys-
tem.
Taps
Frequency
Every Q months
Every Q months
86
-------
§141.88
SUMMARY OF MONITORING REQUIREMENTS FOR WATER QUALITY PARAMETERS 1—Continued
Monitoring Period
Optimal Corrosion Control.
Reduced Monitoring
Parameters2
pH, alkalinity dosage rate and concentra-
tion (if alkalinity adjusted as part of cor-
rosion control), inhibitor dosage rate and
inhibitor residual5.
calcium4.
pH, alkalinity dosage rate and concentra-
tion (if alkalinity adjusted as part of cor-
rosion control), inhibitor dosage rate and
inhibitor residual5.
pH, alkalinity, orthophosphate or silica3,
calcium4.
pH, alkalinity dosage rate and concentra-
tion (if alkalinity adjusted as part of cor-
rosion control), inhibitor dosage rate and
inhibitor residual5.
Location
Entry point(s) to
distribution sys-
tem.
Entry point(s) to
distribution sys-
tem.
Taps
Entry point(s) to
distribution sys-
tem.
Frequency
Biweekly
Biweekly
Every 6 months
at a reduced
number of sites
Biweekly
1 Table is for illustrative purposes; consult the text of this section for precise regulatory requirements.
2 Small and medium-size systems have to monitor for water quality parameters only during monitoring periods in which the
system exceeds the lead or copper action level.
3 Orthophosphate must be measured only when an inhibitor containing a phosphate compound is used. Silica must be meas-
ured only when an inhibitor containing silicate compound is used.
4 Calcium must be measured only when calcium carbonate stabilization is used as part of corrosion control.
5 Inhibitor dosage rates and inhibitor residual concentrations (orthophosphate or silica) must be measured only when an inhibi-
tor is used.
[56 FR 26548, June 7, 1991; 57 FR 28788, June 29,
1992, as amended at 59 FR 33862, June 30, 1994]
§141.88 Monitoring requirements for
lead and copper in source water.
(a) Sample location, collection methods, and
number of samples. (1) A water system that fails
to meet the lead or copper action level on the
basis of tap samples collected in accordance with
§ 141.86 shall collect lead and copper source water
samples in accordance with the requirements re-
garding sample location, number of samples, and
collection methods specified in § 141.23(a) (l)-(4)
(inorganic chemical sampling). (Note: The timing
of sampling for lead and copper shall be in ac-
cordance with paragraphs (b) and (c) of this sec-
tion, and not dates specified in § 141.23(a) (1) and
(2)).
(2) Where the results of sampling indicate an
exceedance of maximum permissible source water
levels established under § 141.83(b)(4), the State
may require that one additional sample be col-
lected as soon as possible after the initial sample
was taken (but not to exceed two weeks) at the
same sampling point. If a State-required confirma-
tion sample is taken for lead or copper, then the
results of the initial and confirmation sample shall
be averaged in determining compliance with the
State-specified maximum permissible levels. Any
sample value below the detection limit shall be
considered to be zero. Any value above the detec-
tion limit but below the PQL shall either be con-
sidered as the measured value or be considered
one-half the PQL.
(b) Monitoring frequency after system exceeds
tap water action level. Any system which exceeds
the lead or copper action level at the tap shall col-
lect one source water sample from each entry
point to the distribution system within six months
after the exceedance.
(c) Monitoring frequency after installation of
source water treatment. Any system which installs
source water treatment pursuant to § 141.83(a)(3)
shall collect an additional source water sample
from each entry point to the distribution system
during two consecutive six-month monitoring peri-
ods by the deadline specified in § 141.83(a)(4).
(d) Monitoring frequency after State specifies
maximum permissible source water levels or deter-
mines that source water treatment is not needed.
(1) A system shall monitor at the frequency speci-
fied below in cases where the State specifies max-
imum permissible source water levels under
§ 141.83(b)(4) or determines that the system is not
required to install source water treatment under
§141.83(b)(2).
(i) A water system using only groundwater shall
collect samples once during the three-year compli-
ance period (as that term is defined in § 141.2) in
effect when the applicable State determination
under paragraph (d)(l) of this section is made.
Such systems shall collect samples once during
each subsequent compliance period.
87
-------
§141.89
(ii) A water system using surface water (or a
combination of surface and groundwater) shall col-
lect samples once during each year, the first an-
nual monitoring period to begin on the date on
which the applicable State determination is made
under paragraph (d)(l) of this section.
(2) A system is not required to conduct source
water sampling for lead and/or copper if the sys-
tem meets the action level for the specific con-
taminant in tap water samples during the entire
source water sampling period applicable to the
system under paragraph (d)(l) (i) or (ii) of this
section.
(e) Reduced monitoring frequency. (1) A water
system using only groundwater which dem-
onstrates that finished drinking water entering the
distribution system has been maintained below the
maximum permissible lead and/or copper con-
centrations specified by the State in § 141.83(b)(4)
during at least three consecutive compliance peri-
ods under paragraph (d)(l) of this section may re-
duce the monitoring frequency for lead and/or
copper to once during each nine-year compliance
cycle (as that term is defined in § 141.2).
(2) A water system using surface water (or a
combination of surface and ground waters) which
demonstrates that finished drinking water entering
the distribution system has been maintained below
the maximum permissible lead and copper con-
centrations specified by the State in § 141.83(b)(4)
for at least three consecutive years may reduce the
monitoring frequency in paragraph (d)(l) of this
section to once during each nine-year compliance
cycle (as that term is defined in § 141.2).
(3) A water system that uses a new source of
water is not eligible for reduced monitoring for
lead and/or copper until concentrations in samples
collected from the new source during three con-
secutive monitoring periods are below the maxi-
mum permissible lead and copper concentrations
specified by the State in § 141.83(a)(5).
[56 FR 26548, June 7, 1991; 57 FR 28788 and 28789,
June 29, 1992]
§141.89 Analytical methods.
(a) Analyses for lead, copper, pH, conductivity,
calcium, alkalinity, orthophosphate, silica, and
temperature shall be conducted with the methods
in§141.23(k)(l).
(1) Analyses under this section shall only be
conducted by laboratories that have been certified
by EPA or the State. To obtain certification to
conduct analyses for lead and copper, laboratories
must:
(i) Analyze performance evaluation samples
which include lead and copper provided by EPA
Environmental Monitoring and Support Laboratory
or equivalent samples provided by the State; and
(ii) Achieve quantitative acceptance limits as
follows:
(A) For lead: ±30 percent of the actual amount
in the Performance Evaluation sample when the
actual amount is greater than or equal to 0.005
mg/L. The Practical Quantitation Level, or PQL
for lead is 0.005 mg/L.
(B) For Copper: ±10 percent of the actual
amount in the Performance Evaluation sample
when the actual amount is greater than or equal to
0.050 mg/L. The Practical Quantitation Level, or
PQL for copper is 0.050 mg/L;
(iii) Achieve method detection limits according
to the procedures in appendix B of part 136 of this
title as follows:
(A) Lead: 0.001 mg/L (only if source water
compositing is done under § 141.23(a)(4)); and
(B) Copper: 0.001 mg/L or 0.020 mg/L when
atomic absorption direct aspiration is used (only if
source water compositing is done under
§ 141.23(a)(4)).
(iv) Be currently certified by EPA or the State
to perform analyses to the specifications described
in paragraph (a)(2) of this section.
(2) States have the authority to allow the use of
previously collected monitoring data for purposes
of monitoring, if the data were collected and ana-
lyzed in accordance with the requirements of this
subpart.
(3) All lead and copper levels measured be-
tween the PQL and MDL must be either reported
as measured or they can be reported as one-half
the PQL specified for lead and copper in para-
graph (a)(l)(ii) of this section. All levels below
the lead and copper MDLs must be reported as
zero.
(4) All copper levels measured between the
PQL and the MDL must be either reported as
measured or they can be reported as one-half the
PQL (0.025 mg/L). All levels below the copper
MDL must be reported as zero.
(b) [Reserved]
[56 FR 26548, June 7, 1991, as amended at 57 FR 28789,
June 29, 1992; 57 FR 31847, July 17, 1992; 59 FR
33863, June 30, 1994; 59 FR 62470, Dec. 5, 1994]
§ 141.90 Reporting requirements.
All water systems shall report all of the follow-
ing information to the State in accordance with
this section.
(a) Reporting requirements for tap water mon-
itoring for lead and copper and for water quality
parameter monitoring. (1) A water system shall
report the information specified below for all tap
water samples within the first 10 days following
the end of each applicable monitoring period spec-
ified in §§ 141.86 and 141.87 and 141.88 (i.e.,
every six-months, annually, or every 3 years).
-------
§141.90
(i) The results of all tap samples for lead and
copper including the location of each site and the
criteria under §141.86(a) (3), (4), (5), (6), and/or
(7) under which the site was selected for the sys-
tem's sampling pool;
(ii) A certification that each first draw sample
collected by the water system is one-liter in vol-
ume and, to the best of their knowledge, has stood
motionless in the service line, or in the interior
plumbing of a sampling site, for at least six hours;
(iii) Where residents collected samples, a certifi-
cation that each tap sample collected by the resi-
dents was taken after the water system informed
them of proper sampling procedures specified in
§141.86(b)(2);
(iv) The 90th percentile lead and copper con-
centrations measured from among all lead and
copper tap water samples collected during each
monitoring period (calculated in accordance with
§141.80(c)(3));
(v) With the exception of initial tap sampling
conducted pursuant to § 141.86(d)(l), the system
shall designate any site which was not sampled
during previous monitoring periods, and include an
explanation of why sampling sites have changed;
(vi) The results of all tap samples for pH, and
where applicable, alkalinity, calcium, conductivity,
temperature, and orthophosphate or silica collected
under §141.87 (b)-(e);
(vii) The results of all samples collected at the
entry point(s) to the distribution system for appli-
cable water quality parameters under § 141.87 (b)-
(e).
(2) By the applicable date in § 141.86(d)(l) for
commencement of monitoring, each community
water system which does not complete its targeted
sampling pool with tier 1 sampling sites meeting
the criteria in § 141.86(a)(3) shall send a letter to
the State justifying its selection of tier 2 and/or
tier 3 sampling sites under §141.86 (a)(4) and/or
(a)(5).
(3) By the applicable date in § 141.86(d)(l) for
commencement of monitoring, each non-transient,
non-community water system which does not com-
plete its sampling pool with tier 1 sampling sites
meeting the criteria in § 141.86(a)(6) shall send a
letter to the State justifying its selection of sam-
pling sites under § 141.86(a)(7).
(4) By the applicable date in § 141.86(d)(l) for
commencement of monitoring, each water system
with lead service lines that is not able to locate the
number of sites served by such lines required
under § 141.86(a)(9) shall send a letter to the State
demonstrating why it was unable to locate a suffi-
cient number of such sites based upon the infor-
mation listed in § 141.86(a)(2).
(5) Each water system that requests that the
State reduce the number and frequency of sam-
pling shall pro-
vide the information required under § 141.86(d)(4).
(b) Source water monitoring reporting require-
ments. (1) A water system shall report the sam-
pling results for all source water samples collected
in accordance with §141.88 within the first 10
days following the end of each source water mon-
itoring period (i.e., annually, per compliance pe-
riod, per compliance cycle) specified in §141.88.
(2) With the exception of the first round of
source water sampling conducted pursuant to
§141.88(b), the system shall specify any site
which was not sampled during previous monitor-
ing periods, and include an explanation of why the
sampling point has changed.
(c) Corrosion control treatment reporting re-
quirements. By the applicable dates under
§141.81, systems shall report the following infor-
mation:
(1) For systems demonstrating that they have al-
ready optimized corrosion control, information re-
quired in § 141.81(b) (2) or (3).
(2) For systems required to optimize corrosion
control, their recommendation regarding optimal
corrosion control treatment under § 141.82(a).
(3) For systems required to evaluate the effec-
tiveness of corrosion control treatments under
§141.82(c), the information required by that para-
graph.
(4) For systems required to install optimal cor-
rosion control designated by the State under
§ 141.82(d), a letter certifying that the system has
completed installing that treatment.
(d) Source water treatment reporting require-
ments. By the applicable dates in §141.83, sys-
tems shall provide the following information to the
State:
(1) If required under § 141.83(b)(l), their rec-
ommendation regarding source water treatment;
(2) For systems required to install source water
treatment under § 141.83(b)(2), a letter certifying
that the system has completed installing the treat-
ment designated by the State within 24 months
after the State designated the treatment.
(e) Lead service line replacement reporting re-
quirements. Systems shall report the following in-
formation to the State to demonstrate compliance
with the requirements of § 141.84:
(1) Within 12 months after a system exceeds the
lead action level in sampling referred to in
§141.84(a), the system shall demonstrate in writ-
ing to the State that it has conducted a material
evaluation, including the evaluation in § 141.86(a),
to identify the initial number of lead service lines
in its distribution system, and shall provide the
State with the system's schedule for replacing an-
nually at least 7 percent of the initial number of
lead service lines in its distribution system.
89
-------
§141.91
(2) Within 12 months after a system exceeds the
lead action level in sampling referred to in
§141.84(a), and every 12 months thereafter, the
system shall demonstrate to the State in writing
that the system has either:
(i) Replaced in the previous 12 months at least
7 percent of the initial lead service lines (or a
greater number of lines specified by the State
under § 141.84(f)) in its distribution system, or
(ii) Conducted sampling which demonstrates
that the lead concentration in all service line sam-
ples from an individual line(s), taken pursuant to
§141.86(b)(3), is less than or equal to 0.015 mg/
L. In such cases, the total number of lines re-
placed and/or which meet the criteria in
§ 141.84(c) shall equal at least 7 percent of the ini-
tial number of lead lines identified under para-
graph (a) of this section (or the percentage speci-
fied by the State under § 141.84(f)).
(3) The annual letter submitted to the State
under paragraph (e)(2) of this section shall contain
the following information:
(i) The number of lead service lines scheduled
to be replaced during the previous year of the sys-
tem's replacement schedule;
(ii) The number and location of each lead serv-
ice line replaced during the previous year of the
system's replacement schedule;
(iii) If measured, the water lead concentration
and location of each lead service line sampled, the
sampling method, and the date of sampling.
(4) As soon as practicable, but in no case later
than three months after a system exceeds the lead
action level in sampling referred to in § 141.84(a),
any system seeking to rebut the presumption that
it has control over the entire lead service line pur-
suant to §141.84(d) shall submit a letter to the
State describing the legal authority (e.g., state stat-
utes, municipal ordinances, public service con-
tracts or other applicable legal authority) which
limits the system's control over the service lines
and the extent of the system's control.
(f) Public education program reporting require-
ments. By December 31st of each year, any water
system that is subject to the public education re-
quirements in § 141.85 shall submit a letter to the
State demonstrating that the system has delivered
the public education materials that meet the con-
tent requirements in §141.85 (a) and (b) and the
delivery requirements in § 141.85(c). This informa-
tion shall include a list of all the newspapers,
radio stations, television stations, facilities and or-
ganizations to which the system delivered public
education materials during the previous year. The
water system shall submit the letter required by
this paragraph annually for as long as it exceeds
the lead action level.
(g) Reporting of additional monitoring data.
Any system which collects sampling data in addi-
tion to that required by this subpart shall report
the results to the State within the first ten days
following the end of the applicable monitoring pe-
riod under §§141.86, 141.87 and 141.88 during
which the samples are collected.
[56 FR 26548, June 7, 1991; 57 FR 28789, June 29,
1992, as amended at 59 FR 33864, June 30, 1994]
§141.91 Recordkeeping requirements.
Any system subject to the requirements of this
subpart shall retain on its premises original records
of all sampling data and analyses, reports, surveys,
letters, evaluations, schedules, State determina-
tions, and any other information required by
§§ 141.81 through 141.88. Each water system shall
retain the records required by this section for no
fewer than 12 years.
Subpart J—Use of Non-Centralized
Treatment Devices
SOURCE: 52 FR 25716, July 8, 1987, unless otherwise
noted.
§141.100 Criteria and procedures for
public water systems using point-of-
entry devices.
(a) Public water systems may use point-of-entry
devices to comply with maximum contaminant
levels only if they meet the requirements of this
section.
(b) It is the responsibility of the public water
system to operate and maintain the point-of-entry
treatment system.
(c) The public water system must develop and
obtain State approval for a monitoring plan before
point-of-entry devices are installed for compliance.
Under the plan approved by the State, point-of-
entry devices must provide health protection
equivalent to central water treatment. "Equiva-
lent' ' means that the water would meet all national
primary drinking water regulations and would be
of acceptable quality similar to water distributed
by a well-operated central treatment plant. In addi-
tion to the VOCs, monitoring must include phys-
ical measurements and observations such as total
flow treated and mechanical condition of the treat-
ment equipment.
(d) Effective technology must be properly ap-
plied under a plan ap-
proved by the State and the microbiological safety
of the water must be maintained.
(1) The State must require adequate certification
of performance, field testing, and, if not included
in the certification process, a rigorous engineering
design review of the point-of-entry devices.
(2) The design and application of the point-of-
entry devices must consider the tendency for in-
crease in heterotrophic bacteria concentrations in
90
-------
§141.140
water treated with activated carbon. It may be nec-
essary to use frequent backwashing, post-contactor
disinfection, and Heterotrophic Plate Count mon-
itoring to ensure that the microbiological safety of
the water is not compromised.
(e) All consumers shall be protected. Every
building connected to the system must have a
point-of-entry device installed, maintained, and
adequately monitored. The State must be assured
that every building is subject to treatment and
monitoring, and that the rights and responsibilities
of the public water system customer convey with
title upon sale of property.
[52 FR 25716, July 8, 1987; 53 FR 25111, July 1, 1988]
§141.101 Use of other non-centralized
treatment devices.
Public water systems shall not use bottled water
or point-of-use devices to achieve compliance with
an MCL. Bottled water or point-of-use devices
may be used on a temporary basis to avoid an un-
reasonable risk to health.
Sub pa it K—Treatment Techniques
SOURCE: 56 FR 3594, Jan. 30, 1991, unless otherwise
noted.
§141.110 General requirements.
The requirements of subpart K of this part con-
stitute national primary drinking water regulations.
These regulations establish treatment techniques in
lieu of maximum contaminant levels for specified
contaminants.
§141.111 Treatment techniques for ac-
rylamide and epichlorohydrin.
Each public water system must certify annually
in writing to the State (using third party or manu-
facturer's certification) that when acrylamide and
epichlorohydrin are used in drinking water sys-
tems, the combination (or product) of dose and
monomer level does not exceed the levels speci-
fied as follows:
Acrylamide=0.05% dosed at 1 ppm (or equivalent)
Epichlorohydrin=0.01% dosed at 20 ppm (or equivalent)
Certifications can rely on manufacturers or third
parties, as approved by the State.
Subpart M—Information Collection
Requriements (ICR) for Public
Water Systems
SOURCE: 61 FR 24368, May 14, 1996, unless otherwise
noted.
EFFECTIVE DATE NOTE: At 61 FR 24368, May 14,
1996, subpart M consisting of §§141.140 through
141.144 were added, effective June 18, 1996 and will ex-
pire on Dec. 31, 2000.
§141.140 Definitions specific to sub-
part M.
The following definitions apply only to the re-
quirements of subpart M of this part and are ar-
ranged alphabetically.
Distribution system means the components of a
PWS that are under the control of that PWS lo-
cated after the point where the finished water sam-
ple is taken and that provide distribution, storage,
and/or booster disinfection of finished water.
Distribution System Equivalent (DSE) sample
means a sample collected from the distribution
system for the purpose of comparing it with the
"simulated distribution system (SDS) sample".
The DSE sample shall be selected using the fol-
lowing criteria:
(1) No additional disinfectant added between the
treatment plant and the site where the DSE sample
is collected;
(2) Approximate detention time of water is
available; and
(3) There is no blending with finished water
from other treatment plants.
Entry point to distribution system means a loca-
tion following one or more finished water sample
points but prior to the beginning of the distribution
system.
Finished water means water that does not un-
dergo further treatment by a treatment plant other
than maintenance of a disinfection residual.
Haloacetic acids (five) (HAAS) means the sum
of the concentration in micrograms per liter of the
haloacetic acids mono-, di-, and trichloroacetic
acid; mono-, and di-, bromoacetic acid, rounded to
two significant figures.
Haloacetic acids (six) (HAA6) means the con-
centration in micrograms per liter of the haloacetic
acids mono-, di-, and trichloroacetic acid;
mono-, and di- bromoacetic acid; and
bromochloroacetic acid, rounded to two significant
figures.
Haloacetonitriles (HAN) means the concentra-
tion in micrograms per liter of the haloacetonitriles
dichloro-, trichloro-, bromochloro-, and dibromo-
acetonitrile, rounded to two significant figures.
Haloketones (HK) means the concentration in
micrograms per liter of the haloketones 1,1-
dichloropropanone and 1,1,1- trichloropropanone,
rounded to two significant figures.
Intake means the physical location at which the
PWS takes water from a water resource. There-
after, the water is under the control of that PWS.
Notice of applicability means a notice sent by
EPA to a PWS that indicates that EPA believes
that the PWS must comply with some or all re-
quirements of subpart M. The PWS is required to
91
-------
§141.141
reply to this notice by providing information spec-
ified in the notice (e.g., retail and wholesale popu-
lation served, types of water sources used, volume
of water treated) by the date provided in subpart
M.
Process train means some number of unit proc-
esses connected in series starting from the treat-
ment plant influent and ending with finished
water. A particular unit process may be in more
than one process train.
Purchased finished water means finished water
purchased by one PWS from another PWS (the
wholesaler). Purchased finished water includes
both purchased finished water that is redisinfected
and purchased finished water that is not.
Simulated distribution system (SDS) sample
means a finished water sample incubated at the
temperature and detention time of a "DSE sam-
ple" collected from the distribution system. Ana-
lytical results of the SDS sample will be compared
with the DSE sample to determine how well the
SDS sample predicts disinfection byproduct forma-
tion in the actual distribution system sample.
Total finished water means the flow (volume
per unit of time) of finished water obtained from
all treatment plants operated by a PWS and in-
cludes purchased finished water. This flow in-
cludes water entering the distribution system and
water sold to another PWS.
Treatment plant means the PWS components
that have as their exclusive source of water a
shared treatment plant influent and that deliver fin-
ished water to a common point which is located
prior to the point at which finished water enters a
distribution system or is diverted for sale to an-
other PWS. For these components of the PWS to
be considered part of one treatment plant, the
PWS must be able to collect one representative
treatment plant influent sample, either at a single
sample point or by a composite of multiple influ-
ent samples, and there must exist a single sam-
pling point where a representative sample of fin-
ished water can be collected. For the purpose of
subpart M, a treatment plant is considered to in-
clude any site where a disinfectant or oxidant is
added to water prior to the water entering the dis-
tribution system. Facilities in which ground water
is disinfected prior to entering a distribution sys-
tem, and facilities in which purchased finished
water has a disinfectant added prior to entering a
distribution system, are considered treatment
plants.
Treatment plant influent means water that rep-
resents the water quality challenge to a particular
plant.
Treatment system means all treatment plants op-
erated by one PWS.
Trihalomethanes (four) (THM4) means the sum
of the concentration in micrograms per liter of the
trihalomethanes chloroform,
bromodichloromethane, dibromochloromethane,
and bromoform, rounded to two significant fig-
ures.
Unit process means a component of a treatment
process train which serves any treatment purpose
such as mixing or sedimentation for which design
and operating information is requested in
§ 141.142(a), Table 6c, of this subpart.
Water resource means a body of water before
it passes through an intake structure. Examples of
a water resource include a river, lake, or aquifer.
For a PWS which purchases finished water, the
water resource is the wholesale PWS which sup-
plies the purchased finished water. Generally water
resources are not under the direct control of a
PWS.
Watershed control practice means protection of
a water resource from microbiological contamina-
tion prior to the water entering an intake. These
protective measures might include, but are not lim-
ited to, a watershed control program approved
under § 141.71(b)(2) of this part, or land use re-
strictions.
§141.141 General requirements, appli-
cability, and schedule for informa-
tion collection.
(a) General requirements. (1) The purpose of
subpart M is to collect specified information from
certain PWSs for a limited period of time. Accord-
ingly, subpart M is of limited duration and is ef-
fective for a defined period (see §§ 141.6(i) and
141.141(e) of this part). Since subpart M does not
establish continuing obligations, a PWS that has
completed all of its requirements at the required
duration and frequency may discontinue its infor-
mation collection efforts even if subpart M is still
in effect.
(2) For the purpose of this subpart, a PWS shall
make applicability determinations based on com-
pletion of data gathering, calculations, and treat-
ment plant categorization specified in appendix A
to paragraph (a) of this section.
(3) For the purpose of this subpart, a PWS that
uses multiple wells drawing from the same aquifer
and has no central treatment plant is considered to
have one treatment plant for those wells and shall
conduct required monitoring under this specifica-
tion. A PWS with multiple wells in one or more
aquifers that are treated in the same treatment
plant is considered to have one treatment plant for
those wells and shall conduct required monitoring
under this specification.
(i) To the extent possible, the PWS should sam-
ple at the well with the largest flow and at the
same well each month for the duration of required
monitoring.
92
-------
§141.141
(ii) A PWS must report information from tern or treatment plant was inoperable. The total time
§ 141.142(a) tables 6a through 6e of this subpart Penod sha11 be 12 months.
for each well that the PWS sampled. —If me treatment system or treatment plant was not in
(4) For the purpose of this subpart a PWS shall operation during one or more calendar months during
treat ground water sources that have been classi- 1995, due to a seasonal reduct™ m demand for &>-
r- i i ,1 r,, , i ^i i- ,,. • n j? ished water, the months that the treatment system or
lied bv the State as under the direct influence of , . . , . . . .
J treatment plant was not in operation are to be included
surface water by May 14, 1996, as surface water m the u monflls of appllcablllty detelmination wlth
sources. A PWS shall treat ground water sources zero flow mdlcatmg no operation.
that either have not been classified by the State (as _If me treatment system or treatment plant was not in
under the direct influence of surface water or not) operation for one or more calendar months in 1995 due
or have been classified by the State as ground to construction and/or maintenance, the applicability
water, by May 14, 1996, as ground water sources. determination will be based on those months in 1995
during which the treatment system or treatment plant
APPENDIX A TO 40 CFR 141.141(a) was in operation, plus the calendar months from 1994
that correspond to those months of 1995 during which
Purpose. The purpose of this appendix is to enable the the treatment system or treatment piant was inoperable.
PWS to assign proportional amounts of its retail and The total time period shall be 12 months.
wholesale population served to specific treatment plants. ^ ^ ^ ^ ^^^1^1 iit
T^I ™T7c< i 11 i i i i -1-1 —Treatment systems or treatment plants whose total
The PWS shall then use these values to determine which ....,,. . ,, . ;, , , ,
. ~. . ,. , < * f ^ < •< ^ i operational lifetime is fewer than 12 calendar months
specific requirements in subpart M that it must comply ,. ^ , , ^c . . 1-1
• , , , 111 as of December 1995 are not required to comply with
with and on what schedule. , .
n . , ,. ,. , .,.^ , ^ . ^. T- *i subpart M requirements.
Penod oj applicability determination. For the purpose L n
of this appendix, a PWS shall make applicability deter- —PWSs that Purchase all their water from one or more
mmations based on population calculated as annual aver- other PWSs and do not further treat any of thelr water
ages based on PWS records of treatment system or treat- are not required to comply with subpart M require-
ment plant operation during calendar year 1995. ments.
—If a natural disaster made a treatment system or treat- Applicability determination. To determine applicability,
ment plant inoperable for one or more calendar months the PWS is required to collect certain operational data and
m 1995, the applicability determination will be based perform specified mathematical operations. All oper-
on those months in 1995 during which the treatment ational data and calculated values will be expressed as ei-
system or treatment plant was in operation, plus the ther "F" (for flow) or "P" (for population), with a one
calendar months from 1994 that are representative of or two character subscript. Table A-l contains a more de-
those months of 1995 during which the treatment sys- tailed explanation.
TABLE A-1.—: APPENDIX A SUBSCRIPT IDENTIFICATION PROTOCOL
General.
1. "F" indicates a flow value. The PWS must use million gallons per day (MGD) to express the flow through-
out its calculations.
2. "P" indicates a population value, expressed as a number of people.
Subscripts.
1. "PR" is retail population, "Fw" is wholesale flow, and "FN" is purchased finished water that is not further
treated.
2. Each "F" value (in Table A-2) or "P" value (in Table A-4) will have a two character designator.
a. The first character in the subscript indicates the source type. Possible entries are "S" (for surface
water or ground water under the direct influence of surface water), "G" (for ground water not under the
direct influence of surface water), "P" (for finished water purchased from another PWS and further
treated at the entrance to the distribution system, such as by redisinfection), and "C" (for combined, or
the sum of all water treated by the PWS, including purchased water that is further treated at the en-
trance to the distribution system).
b. The second character in the subscript indicates the specific identification of the treatment plant. This
will be a number (e.g., 1,2,3,* * *, with # being a non-specific designator) and "T" (for a Total).
Data from operational records. The PWS shall deter- —Fw= finished water sold to one or more other PWSs,
mine the following information based on operational regardless of whether buying PWSs further treat the
records. finished water
—PR=Retail population served by the PWS = (MGD)
= (number of people) —Flows from specific water resources to specific treat-
—FN=treated water bought from one or more other PWSs ment plants. For each treatment plant operated by the
and not further treated at the entry point to the dis- pwS, the PWS must determine the flow from each
tribution system water resource that provides water to the treatment
= (MGD) plant. In the following table, the PWS must enter flow
from each type of water resource into the appropriate
93
-------
§141.141
block, using the subscript identification protocol in
table A-l.
—Fs#=surface water treated at treatment plant "#"
= (MOD) (enter into Table A-2)
—Fo#=ground water treated at treatment plant "#"
= (MGD) (enter into Table A-2)
—Fp#=treated water bought from one or more other
PWSs and further treated at treatment plant "#"
prior to the entry point to the distribution system
= (MGD) (enter into Table A-2)
TABLE A-2.—TREATED FLOW VALUES
Water resources (by type source)
Surface water (S)
Purchased finished water that is further treated (P)
Combined (Cl
Sources of treated water (FLOW)
Treatment plants
#1
(Fsi)
(Fai)
(Fpi)
fFr-il
#2
(FS2)
(FS2)
(Fp2)
fFr-,1
#3
(Fss)
(Fos)
(Fp3)
fFr-,1
#4
(FS4)
(F«)
(FP4>
fFrul
NOTE: The Fc# value is calculated by adding the Fs#, FG#, and FP# values in the column above.
—FcT=finished water produced in all of the PWS's treat-
ment plants (calculated by adding the combined
flows from each treatment plant (L (Fc#)).
= (MGD)
Calculated values. The PWS must calculate the follow-
ing values.
—Population equivalents. Divide the flow values in Table
A-2 by the conversion factor K below (a PWS-specific
per capita finished water usage rate) and enter in the
corresponding box in Table A-3 below. For each treat-
ment plant operated by the PWS, the PWS must deter-
mine the population served by each type of water re-
source that provides water to the treatment plant.
Conversion factor=K=(FcT+FN • FW)/PR=
For Table A-3, P=F/K, using F values from Table A-2
(e.g., Psi=FSi/K).
TABLE A-3: POPULATION SERVED VALUES
Population served by treated water (number of people)
Water resources (by type source)
Ground water (G)
Purchased finished water ths
Combined fCl
Treatment plants
#1
(Psi)
(Poi)
(Ppl)
(Pnl
#2
(PS2)
(PG2)
(PP2>
(Pr,l
#3
(Pss)
(PP3>
fPr-,1
#4
(PS4)
(Pw)
fPral
Note: The Pc# value is calculated by adding the Ps#, PG#, and PP# values in the column above.
—PcT=number of people served by finished water pro-
duced in all of the PWS's treatment plants (cal-
culated by adding the combined populations served
by each treatment plant (I. (Pc#)))
= (people)
NOTE: A PWS that sells all its finished water and thus
has no retail population must calculate the population
served by the PWS by raising the PWS's average treated
flow (in MGD) to the 0.95 power and multiplying the re-
sult by 7,700. As an equation, this would appear as:
PWS population served=7,700 (PWS's average treated
flow in MGD)0-95
The PWS may then calculate the population served by
each of its treatment plants by multiplying the PWS popu-
lation served times the average treated flow from the
treatment plant divided by the average treated flow for the
PWS. As an equation, this would appear as:
ER14MY96.001
Treatment plant categorization. A PWS must categorize
its treatment plants to determine its specific compliance
requirements by reviewing Table A^4- below.
94
-------
§141.141
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95
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§141.141
(b) Applicability. (1) Table 1 of this paragraph is a summary of
treatment plant categorization under the provisions
of appendix A to paragraph (a) of this section.
96
-------
§141.141
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97
-------
§141.141
(2) Table 2 of this paragraph specifies applica-
bility for requirements contained in §§141.142,
141.143, and 141.144 of this part, based on treat-
ment plant categorization determined under the
provisions of appendix A to paragraph (a) of this
section.
TABLE 2—SUBPART M APPLICABILITY
Subpart M Requirements
Categories of treatment plants1
§141.142.— DBP and Related Monitoring
Table 22
TableS2
Table 5a and 5b2
Table 6
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
§141.143— Microbiological
Treatment plant influent
Finished water monitor-
ing3
X
X
§141
X
X
X
X
X
X
X
X
Monitoring
X
X
X
X
X
X
X
X
X
X
X
X
X
X
.144 — Applicability Monitoring and Treatment Studies
Treatment study applica-
bility monitoring X
Pilot-scale treatment stud-
ies" X
Bench- or pilot-scale
treatment studies4 X
1 As determined by Appendix A to paragraph (a) of this section.
2 Table 2 required only for treatment plants using chloramines. Table 3 required only for treatment plants using hypochlorite so-
lution. Table 4a and 4b required only for treatment plants using ozone. Table 5a and 5b required only for treatment plants using
chlorine dio xide.
3 Only required for a PWS that, during any of the first twelve months of monitoring at the treatment plant influent, detects 10 or
more Giardia cysts, or 10 or more Cryptosporidium oocysts, or one or more total culturable viruses in one liter of water; or cal-
culates a numerical value of the Giardia or Cryptosporidium concentration equal to or greater than 1000 per 100 liters or virus
concentration equal to or greater than 100 per 100 liters; or detects no pathogens in the sample and calculates a numerical
value of the detection limit for Giardia or Cryptosporidium concentration equal to or greater than 1000 per 100 liters or virus con-
centration equal to or greater than 100 per 100 liters.
4 Pilot-scale treatment studies are required for treatment plants that serve a population of 500,000 or greater. Bench- or pilot-
scale treatment studies are required for treatment plants that serve a population of fewer than 500,000.
(c) Disinfection Byproduct and Related Monitor-
ing. A PWS must comply with the monitoring re-
quirements in §141.142 of this subpart for treat-
ment plants in treatment plant categories A, B, C,
D, and E listed in table 1 in paragraph (b)(l) of
this section. The PWS shall monitor monthly for
18 consecutive months at each treatment plant,
even if a treatment plant was not used for one or
more calendar months. When the treatment plant is
not operating, the PWS shall file the report re-
quired under §141.142(c) of this subpart to indi-
cate zero flow, and need only conduct treatment
plant influent monitoring under the provisions of
§141.142 of this subpart. A PWS must comply
with the monitoring requirements in §141.142 of
this subpart for treatment plants in treatment plant
categories F listed in table 1 in paragraph (b)(l)
of this section monthly for 18 consecutive months
at each treatment plant, except if a treatment plant
was not used for one or more calendar months.
When the treatment plant is not operating, the
PWS shall file the report required under
§141.142(c) of this subpart to indicate zero flow,
and is not required to conduct treatment plant in-
fluent monitoring under the provisions of
§ 141.142 of this subpart.
(d) Microbiological Monitoring. A PWS must
comply with the monitoring requirements in
§141.143 of this subpart for treatment plants in
treatment plant categories A, C, and E listed in
table 1 in paragraph (b)(l) of this section and
table 3 of this paragraph. The PWS shall conduct
18 consecutive months of microbiological monitor-
ing at each treatment plant, even if it is not oper-
ated each calendar month.
98
-------
§141.141
TABLE 3.—MICROBIOLOGICAL MONITORING REQUIREMENTS FOR SUBPART M
Microbial sample
Total coliforms
Giardia
CrvotosDoridium
Treatment plant category
A, C and E
Treatment plant
influent
1/month
1/month
1/month
Finished water1
1/month.
1/month.
1/month.
1/month.3
1/month.3
1 Only required for a PWS that, during any of the first twelve months of monitoring at the treatment plant influent, detects 10 or
more Giardia cysts, or 10 or more Cryptosporidium oocysts, or one or more total culturable viruses in one liter of water; or cal-
culates a numerical value of the Giardia or Cryptosporidium concentration equal to or greater than 1000 per 100 liters or virus
concentration equal to or greater than 100 per 100 liters; or detects no pathogens in the sample and calculates a numerical
value of the detection limit for Giardia or Cryptosporidium concentration equal to or greater than 1000 per 100 liters or virus con-
centration equal to or greater than 100 per 100 liters. The PWS shall collect one sample of finished water during each month
that the treatment plant is operated at each such treatment plant beginning in the first calendar month after the PWS learns of
such a result. A PWS shall continue finished water monitoring monthly until 18 months of treatment plant influent monitoring has
been completed.
2 A PWS may avoid virus monitoring if the PWS has monitored total coliforms, fecal coliforms, or E coli in the source water for
at least five days/week for any period of six consecutive months beginning after January 1, 1994, and 90% of all samples taken
in that six-month period contained no greater than 100 total coliforms/100 ml, or 20 fecal coliforms/100 ml, or 20 £ co/aMOO ml.
3 A PWS may avoid the requirement for finished water monitoring of Giardia and Cryptosporidium if the PWS notifies EPA that
it will comply with the alternative monitoring requirements in §141.143(a)(2)(iii). The PWS must still conduct finished water mon-
itoring for all other microorganisms, except that Giardia and Cryptosporidium monitoring in the finished water is not required.
(e) Disinfection Byproduct Precursor Removal
Studies (Treatment Studies).
(1) A PWS shall comply with treatment study
applicability monitoring in paragraph (e)(2) of this
section at each treatment plant in treatment plant
categories A, B, C, D, and G listed in table 1 in
paragraph (b)(l) of this section. A PWS shall
comply with the treatment study requirements in
§141.144 of this subpart at each such treatment
plant, except for those treatment plants:
(i) Meeting the source water quality, disinfec-
tion practice, or disinfection byproduct precursor
removal practice criteria in paragraph (e)(3) of this
section, for which no treatment study is required;
or
(ii) Meeting the common water resource criteria
in paragraph (e)(4) of this section, for which sev-
eral PWSs may conduct treatment studies jointly,
in lieu of separately; or
(iii) Meeting the common water resource criteria
in paragraph (e)(5) of this section, for which a
PWS may contribute funds towards research, in
lieu of conducting a treatment study; or
(iv) At which a previous treatment study that
meets the criteria in paragraph (e)(6) of this sec-
tion has already been conducted, for which a PWS
may use the results of this previous treatment
study, in lieu of conducting another treatment
study; or
(v) Operated by the PWS that use the same
water resource, as classified by the procedure in
paragraph (e)(4) of this section. The PWS is not
required to conduct more than one treatment study
for those treatment plants. If both pilot-scale and
bench-scale treatment studies would otherwise be
required for treatment plants on the same water re-
source, the PWS shall conduct a pilot-scale study.
A PWS with multiple water resources shall con-
duct treatment studies for each treatment plant that
uses different water resources.
(2) Treatment study applicability monitoring.
(i) PWSs shall monitor total organic carbon
(TOC) monthly for 12 months. Treatment plants
using surface water shall monitor treatment plant
influent. Treatment plants using ground water shall
monitor finished water.
(ii) Treatment study applicability monitoring for
THM4 and HAAS is only required by a PWS that
intends to qualify for avoiding a treatment study
under the provisions of paragraph (e)(3)(i) of this
section.
(iii) Total organic halides formed under the uni-
form formation conditions (UFCTOX) monitoring
is only required by a PWS that intends to qualify
for a joint treatment study under the provisions of
paragraph (e)(4)(i)(A)(2) of this section or for the
alternative to conducting a treatment study under
the provisions of paragraph (e)(5) of this section.
(3) Criteria under which no treatment study is
required. A PWS identified in paragraph (e)(l) of
this section is not required to conduct a treatment
study at any treatment plant that satisfies any cri-
teria in paragraphs (e)(3) (i) through (iv) of this
section, provided that the PWS has also complied
with the requirements in paragraph (e)(7)(i) of this
section and EPA has approved the PWS's request
to avoid the treatment study.
(i) Treatment plants that use chlorine as both
the primary and residual disinfectant and have, as
an annual average of four quarterly averages, lev-
els of less than 40
99
-------
§141.141
Hg/1 for THM4 and less than 30 |lg/l for HAAS.
Quarterly averages are the arithmetic average of
the four distribution system samples collected
under the requirements of § 141.142(a)(l) of this
subpart.
(ii) Treatment plants using surface water that do
not exceed a TOC annual average of 4.0 mg/1 in
the treatment plant influent, measured in accord-
ance with §§141.141(f)(4) and 141.144(a) of this
subpart and calculated by averaging the initial 12
monthly TOC samples.
(iii) Treatment plants using only ground water
not under the direct influence of surface water that
do not exceed a TOC annual average of 2.0 mg/
1 in the finished water, measured in accordance
with §§141.141(f)(4) and 141.144(a) of this sub-
part and calculated by averaging the initial 12
monthly TOC samples.
(iv) Treatment plants that already use full scale
membrane or GAC technology. For a treatment
plant that already uses full-scale GAC or mem-
brane technology capable of achieving precursor
removal, a PWS shall conduct monitoring and sub-
mit full-scale plant data required for disinfection
byproduct and related monitoring by §141.142(a)
of this subpart, ensuring that the GAC or mem-
brane processes are included in the process train
being monitored. For a treatment plant to be con-
sidered to have membrane technology to achieve
precursor removal, the PWS shall have used
nanofiltration or reverse osmosis membranes.
GAC capable of removing precursors is defined as
GAC with an empty bed contact time (EBCT) of
15 minutes or greater, with a time between carbon
reactivation or replacement of no more than nine
months. PWSs that operate treatment plants that
use GAC with either an EBCT of less than 15
minutes or a replacement or reactivation frequency
for GAC longer than nine months may submit a
request to avoid treatment studies under the provi-
sions of paragraph (e)(7)(i) of this section by in-
cluding data demonstrating effective DBF precur-
sor removal.
(4) Criteria under which joint treatment studies
are allowed, (i) PWSs that use common water re-
sources and have similar treatment trains may con-
duct joint treatment studies. A common water re-
source for all types of surface water resources re-
quires the mean treatment plant influent TOC or
UFCTOX of each of the cooperating treatment
plants to be within 10% of the average of the
mean treatment plant influent TOCs or UFCTOX
of all the cooperating treatment plants. A common
water resource for all types of ground water re-
sources requires the mean treatment plant finished
water TOC or UFCTOX of each of the cooperat-
ing treatment plants to be within 10% of the aver-
age of the mean treatment plant finished water
TOCs or UFCTOX of all the cooperating treat-
ment plants. The mean is calculated from the
monthly TOC or UFCTOX monitoring data for the
initial twelve months of monitoring under
§141.144(a) of this subpart. Similar treatment
trains means that, for example, softening plants
may not conduct joint studies with conventional
treatment plants. In addition, the applicable re-
quirements in paragraphs (e)(4)(i) (A) through (C)
of this section shall be met for the water resource
to be considered a common water resource. If oth-
erwise eligible, a PWS may choose to either per-
form a joint treatment study with other eligible
systems or contribute funds to a cooperative re-
search program, as described in paragraph (e)(5)
of this section, as an alternative to conducting a
treatment study.
(A) River sources. Treatment plants with river
intakes are considered to have a common water re-
source if the PWS meets either criteria in para-
graphs (e)(4)(i)(A) (7) or (2) of this section.
(7) The intakes are no more than 20 river miles
apart and TOC at each treatment plant influent is
within 10% of the mean TOC of all the treatment
plant influents.
(2) The intakes are at least 20, but no more than
200, river miles apart and the PWS demonstrates
that the mean water resource UFCTOX is within
10% of the mean UFCTOX of all the treatment
plant influents, based on UFCTOX analytical re-
sults of the same 12 consecutive months for all
cooperating treatment plants.
(B) Lake/reservoir. Treatment plants with lake
or reservoir intakes are considered to have a com-
mon water resource if the same lake or reservoir
serves all the cooperating treatment plants and
TOC at each treatment plant influent is within
10% of the mean TOC of all the treatment plant
influents.
(C) Ground water not under the direct influence
of surface water. Treatment plants with intakes
from a single aquifer are considered to have a
common water resource if treatment plant finished
water TOC at each treatment plant is within 10%
of the mean finished water TOC of all the treat-
ment plants.
(ii) PWSs that meet the requirements of para-
graph (e)(4)(i) of this section shall conduct at least
the number and type of joint studies noted in the
following tables. Joint studies shall only be con-
ducted among treatment plants in the same size
category, i.e. a population served of either
>500,000 or of <500,000. The maximum number
of treatment plants with a population served
>500,000 persons allowed to join together to con-
duct a study is three. The maximum number of
treatment plants with a population served
<500,000 persons allowed to join together to con-
duct a study is six.
100
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§141.141
JOINT STUDIES REQUIREMENT FOR TREATMENT
PLANTS WITH A POPULATION SERVED OF
<500,000
Number of
plants
2
3
4
5
6
Minimum studies to be conducted
1 pilot (GAC or membrane).
(GAC or membrane).
JOINT STUDIES REQUIREMENT FOR TREATMENT
PLANTS WITH A POPULATION SERVED OF
>500,000
Number of
plants
Minimum studies to be conducted
1 pilot (GAC or membrane), 2 bench (GAC and/
or membrane).
2 pilots (GAC and/or membrane).
(5) Criteria under which an alternative to con-
ducting a treatment study is allowed. In lieu of
conducting the required treatment study, a PWS
may apply to EPA to contribute funds to a cooper-
ative research effort. The PWS shall submit an ap-
plication to EPA Technical Support Division, ICR
Precursor Removal Studies Coordinator, 26 W.
Martin Luther King Drive, Cincinnati, OH 45268.
The application shall show that the treatment plant
for which the waiver of the treatment study is
sought uses a common water resource, as de-
scribed in paragraph (e)(4) of this section, that is
being studied by another PWS or cooperative of
PWSs operating treatment plants in the same size
category. A PWS operating treatment plants serv-
ing a population of fewer than 500,000 may also
contribute to this fund if there is a common water
resource (as defined in paragraph (e)(4) of this
section) treatment plant serving 500,000 or more
conducting a treatment study. If EPA approves the
application, the PWS shall contribute funds in the
amount specified in paragraph (e)(5)(i) of this sec-
tion to the Disinfection Byproducts/Microbial Re-
search Fund, to be administered by the American
Water Works Association Research Foundation
(AWWARF) under the direction of an independent
research council, for use in a dedicated coopera-
tive research program related to disinfectants, dis-
infection byproducts, and enhanced surface water
treatment.
(i) The PWS shall contribute $300,000 for a
treatment plant with a population served of
500,000 or more. The PWS shall contribute
$100,000 for a treatment plant with a population
served of fewer than 500,000.
(ii) The PWS shall send the contribution to the
address specified in EPA's approval letter not later
than 90 days after EPA approves the PWS appli-
cation for waiver of the treatment study.
(6) Criteria under which a previous treatment
study is acceptable (grandfathered studies). A
PWS that has conducted studies of precursor re-
moval that meet all the criteria in paragraphs
(e)(6) (i) and (ii) of this section may use the re-
sults of that study in lieu of conducting another
treatment study.
(i) The PWS used analytical methods specified
in table 7 of § 141.142(b)(l) of this subpart and
used the analytical and quality control procedures
described in "DBP/ICR Analytical Methods Man-
ual", EPA 814-B-96-002.
(ii) The PWS followed a protocol similar to that
specified and supplies the data specified in "ICR
Bench- and Pilot-scale Treatment Study Manual"
(EPA 814-B-96-003, April 1996).
(7) Process for a PWS to obtain EPA approval
of criteria applicability. A PWS wanting to avoid
the requirements for a treatment study under the
provisions of paragraphs (e) (3) through (6) of this
section shall submit the applicable information in
paragraphs (e)(7) (i) through (iv) of this section
and in "ICR Bench- and Pilot-scale Treatment
Study Manual" (EPA 814-B-96-003, April 1996)
and all monitoring data required under
§§141.142(a) and 141.143(a) of this subpart to
EPA, Technical Support Division, ICR Precursor
Removal Studies Coordinator, 26 W. Martin Lu-
ther King Drive, Cincinnati, OH 45268.
(i) Approval of request to avoid treatment stud-
ies. A PWS that believes it qualifies to avoid the
requirements for a treatment study under the pro-
visions of paragraph (e)(3) (i) through (iii) of this
section shall submit the information showing the
applicable criterion for not conducting the study
has been met not later than November 14, 1997.
A PWS wanting to avoid the requirements for a
treatment study under the provisions of paragraph
(e)(3)(iv) of this section shall submit the support-
ing information, including any pilot- or full-scale
data showing effective precursor removal, not later
than November 14, 1997. A PWS that applies to
avoid a treatment study under the provisions of
paragraph (e) (4) through (6) of this section and
subsequently qualifies to avoid a treatment study
under the provisions of paragraph (e)(3) (i)
through (iii) of this section may elect to avoid a
treatment study under the provisions of paragraph
(e)(3) (i) through (iii) of this section. If the PWS
elects to avoid a treatment study under the provi-
sions of paragraph (e)(3) (i) through (iii) of this
section, the PWS shall notify all PWSs that were
associated with the application to avoid a treat-
ment study under the provisions of paragraph (e)
(4) through (6) of this section.
101
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§141.141
(ii) Approval of request to conduct joint studies.
A PWS that believes it qualifies to avoid the re-
quirements for a treatment study under the joint
study provisions of paragraph (e)(4) of this section
shall submit a letter of intent to EPA with the in-
formation in paragraphs (e)(7)(ii) (A) through (F)
of this section for all treatment plants to be in-
cluded in the joint study not later than May 14,
1997. The letter shall be signed by all PWSs plan-
ning to participate in the joint study. All PWSs
shall submit a combined application for joint stud-
ies approval to EPA (including 12 months of treat-
ment plant influent TOC or finished water TOC
results or UFCTOX results, as appropriate, for
each treatment plant to be included in the joint
study) not later than November 14, 1997.
(A) Data to support their common water re-
source designation.
(B) Information to demonstrate that treatment
plants have similar treatment trains.
(C) Information that treatment plants are in the
same size category.
(D) The treatment plant influent TOC or fin-
ished water TOC results, or UFCTOX results, as
appropriate, from the first six months of monitor-
ing.
(E) What studies will be conducted (i.e., com-
bination of bench/pilot and GAC/membrane).
(F) Any additional supporting data.
(iii) Approval of request for alternative to treat-
ment studies. A PWS that believes it qualifies to
avoid the requirements for a treatment study under
the provisions for an alternative in paragraph
(e)(5) of this section shall submit a letter of intent
expressing its intention to contribute funds to the
cooperative research effort not later than May 14,
1997. The letter shall identify the other treatment
plants using the same water resource which will
be conducting studies. Each PWS shall submit an
application for approval of alternative to treatment
studies to EPA (including 12 months of treatment
plant influent TOC or finished water TOC results
or UFCTOX results, as appropriate) not later than
November 14, 1997. EPA shall notify the PWS
whether a treatment study is required (because
there is no other appropriately sized treatment
plant using the same water resource conducting a
treatment study) or if the PWS can avoid the study
by contributing funds to the cooperative research
effort specified in paragraph (e)(5) of this section.
(iv) Approval of request to use grandfathered
studies. A PWS that believes it qualifies to avoid
the requirements for a treatment study under the
grandfathered study provisions of paragraph (e)(6)
of this section shall submit the following informa-
tion not later than February 14, 1997: a description
of the study, the equipment used, the experimental
protocol, the analytical methods, the quality assur-
ance plan, and any reports resulting from the
study. EPA shall review the information and in-
form the PWS whether or not the prior study
meets the ICR requirements. Not later than No-
vember 14, 1997, the PWS must submit study data
in the format specified in "ICR Manual for
Bench- and Pilot-scale Treatment Studies", EPA
814-B-96-003, April 1996. An approved grand-
fathered study can be justification for common
water resource PWSs contributing to the coopera-
tive research effort under the provisions of para-
graph (e)(5) of this section, but may not be used
as joint treatment studies unless it incorporates the
requirements listed in § 141.141(e)(4) of this sec-
tion and the PWS submits written concurrence of
the PWS which conducted the study.
(f) Effective dates. (1) A PWS shall respond to
the Notice of Applicability sent by EPA within 35
calendar days of receipt of that notice. The PWS's
response to the Notice shall indicate what require-
ments in subpart M apply to each treatment plant
operated by the PWS. If a PWS meets the applica-
bility criteria in paragraph (b) of this section and
has not received a Notice of Applicability from
EPA by June 28, 1996, that PWS must request a
Notice of Applicability from EPA by contacting
the ICR Utilities Coordinator, TSD, USEPA, 26
West Martin Luther King Drive, Cincinnati, OH
45268, not later than July 15, 1996.
(2) A PWS required to monitor under both para-
graphs (c) and (d) of this section shall begin mon-
itoring to comply with the provisions of § 141.142
(Disinfection Byproduct and Related Monitoring)
and § 141.143 (Microbiological Monitoring) of this
subpart in the same month. The PWS must submit
the sampling plans required by §§ 141.142(c)(2)(ii)
and 141.143(c)(3)(ii) of this subpart at the same
time.
(3) Disinfection Byproduct and Related Mon-
itoring. A PWS operating a treatment plant re-
quired to comply with §141.142 of this subpart
shall begin monitoring in the calendar month fol-
lowing approval of the DBF and related monitor-
ing sampling plan submitted under the provisions
of § 141.142(c)(2)(ii) of this subpart. Once a PWS
has begun monitoring, it shall continue to monitor
for 18 consecutive months.
(4) Microbiological Monitoring. A PWS operat-
ing a treatment plant identified in paragraph (d) of
this section shall begin monitoring under the pro-
visions of § 141.143 of this subpart in the calendar
month following approval of the sampling plan
submitted under the provisions of
§141.143(c)(3)(ii) of this subpart. Once a PWS
has begun monitoring, it shall continue to monitor
for 18 consecutive months.
(5) DBF precursor removal studies, (i) TOC,
UFCTOX, THM4, and HAAS monitoring. A PWS
required to comply with § 141.144 of this subpart
102
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§141.142
shall begin TOC, UFCTOX, THM4, and HAAS
monitoring specified in paragraph (e)(2) of this
section not later than August 14, 1996 and con-
tinue this monitoring for 12 consecutive months
for TOC and UFCTOX and four consecutive quar-
ters for THM4 and HAAS.
(ii) A PWS required to conduct a disinfection
byproduct precursor removal study (treatment
study) under the provisions of paragraph (e)(l) of
this section shall begin conducting such treatment
studies not later than April 14, 1998 and submit
the report(s) of the completed study to EPA not
later than July 14, 1999.
§141.142 Disinfection byproduct and
related monitoring.
(a) Monitoring requirements. Samples taken
under the provisions of this section shall be taken
according to the procedures described in the "ICR
Sampling Manual," EPA 814-B-96-001, April
1996. If a treatment plant configuration results in
two required sampling points from any table in
this section when in fact it is a single location, du-
plicate analyses are not required for the same loca-
tion and time. A PWS that uses purchased finished
water shall determine whether any monitoring of
treatment plant influent is required under para-
graphs (a) (2) through (5) of this section because
of certain treatment (e.g., use of hypochlorite or
chlorine dioxide) of the water provided by the
selling PWS.
(1) A PWS shall obtain a complete set of sam-
ples at the frequency and location noted in tables
la and Ib of this section for treatment plants re-
quired to test under §141.141(b) of this subpart.
Samples shall be taken according to the sampling
plan approved under the provisions of paragraph
(c)(2)(ii) of this section.
(i) Samples of finished water shall be collected
at a point after which all treatment processes for
a particular treatment plant are complete (includ-
ing the clearwell and final point of chlorination)
and before the distribution system begins. A PWS
that purchases finished water shall collect a sam-
ple before additional disinfectant is added to the
purchased finished water. A PWS shall collect a
sample of purchased finished water only if the
PWS redisinfects the purchased finished water. A
sample of finished water is a sample representing
the final product water from a particular treatment
plant.
(ii) A sample of treatment plant influent for a
PWS that treats untreated water shall be taken at
a location at the upstream end of a treatment plant
where waters from all intakes are blended prior to
any treatment or chemical addition. For treatment
plants that have multiple intakes and add chemi-
cals at the intake, the sample of treatment plant in-
fluent shall be a flow proportional composite of
intake samples collected before chemical addition
and before pretreatment. If the intakes are ex-
pected to have the same source water quality, one
representative intake sample may be taken. If a
disinfectant is added at or before the intake (e.g.,
for zebra mussel control), the sample shall be
taken in the vicinity of the intake so that the sam-
ple is not contaminated by the disinfectant. A sam-
ple of treatment plant influent for a PWS that
treats purchased finished water is taken at a loca-
tion just before the purchased finished water is
treated. An intake sample is collected after the in-
take but before blending with waters from other
intakes and before addition of chemicals or any
treatment.
TABLE 1A.—MONTHLY MONITORING REQUIREMENTS FOR TREATMENT PLANTS
Sampling point
Monthly analyses1
Treatment plant influent for non-finished
water.
Treatment plant influent for purchased fin-
ished water2.
Before first point of oxidant addition
Washwater return between washwater
treatment plant and point of addition to
process train4.
Additional water sources added to process
train after treatment plant influent. The
sample point is before additional water is
blended with the process train.
Before Filtration
After Filtration
Before each Point of Disinfection5
After every unit process that is down-
stream from the addition of chlorine or
chloramines.
pH, Alkalinity, Turbidity, Temperature, Calcium and Total Hardness, TOC, UV254,
Bromide, Ammonia.
pH, Alkalinity, Turbidity, Temperature, Calcium and Total Hardness, TOC, UV254,
Disinfectant residual3.
Chlorine demand test.
pH, Alkalinity, Turbidity, Temperature, Calcium and Total hardness, TOC, UV254,
Bromide, Ammonia, Disinfectant residual3 if disinfectant is used.
pH, Alkalinity, Turbidity, Temperature, Calcium and Total hardness, TOC, UV254,
Bromide, Ammonia, Disinfectant residual3 if disinfectant is used.
pH, Alkalinity, Turbidity, Temperature, Calcium and Total Hardness, TOC, and
UV2S4.
pH, Alkalinity, Turbidity, Temperature, Calcium and Total Hardness, TOC, and
UV254.
pH, Alkalinity, Turbidity, Temperature, Calcium and Total Hardness, TOC, and
UV254.
Disinfectant Residual3.
103
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§141.142
TABLE 1 A.—MONTHLY MONITORING REQUIREMENTS FOR TREATMENT PLANTS—Continued
Sampling point
Finished water sample point (Plant efflu-
ent).
Entry point to distribution system6
Monthly analyses1
pH, Alkalinity, Turbidity, Temperature, Calcium and Total Hardness,
Disinfectant Residual3.
pH, Alkalinity, Turbidity, Temperature, Calcium and Total Hardness,
Disinfectant Residual3.
TOC, UV254,
TOC, UV254,
1 TOC: total organic carbon. UV254: absorbance of ultraviolet light at 254 nanometers.
2 Samples of purchased finished water shall be taken prior to addition of any more disinfectant.
3 Free chlorine residual and total chlorine residual shall be measured in treatment systems using free chlorine. Total chlorine
residual, but not free chlorine residual, shall be measured in treatment systems using chloramines as the residual disinfectant.
4Washwater return shall be sampled prior to blending with the process train.
5 For utilities using ozone or chlorine dioxide, Tables 4 and 5, respectively, of this section, show additional monitoring require-
ments at this sampling point. Addition of ammonia for the purpose of converting free chlorine to chloramines is considered a
point of disinfectant addition. PWSs that disinfect just before filtration may use the "before filtration" sampling point analytical re-
sults to meet the monitoring requirement for this point.
6 Entry point to distribution system only required for treatment plants that blend finished water with finished water from other
treatment plant(s) prior to entry point of distribution system. For most treatment plants, the finished water sample point and the
entry point to the distribution system are the same.
TABLE IB.—QUARTERLY MONITORING REQUIREMENTS FOR TREATMENT PLANTS
Sampling point
Quarterly analyses1
Treatment plant influent for non-finished
water.
Treatment plant influent for purchased fin-
ished water.
Washwater Return between washwater
treatment plant and point of addition to
process train.
After filtration if disinfectant is applied at
any point in the treatment plant prior to
filtration.
Finished water sample point (Plant Efflu-
ent).
Entry point to distribution system2
SDS3
Four monitoring points in distribution sys-
tem4,6.
TOX.
THM4, HAA67, HAN, CP, HK, CH, TOX.
TOX.
THM4, HAA67, HAN, CP, HK, CH, TOX.
THM4, HAA67, HAN, CP, HK, CH, TOX.
THM4, HAA67, HAN, CP, HK, CH, TOX.
THM4, HAA67, HAN, CP, HK, CH, TOX, pH, Alkalinity, Turbidity, Temperature,
Calcium and Total Hardness, Disinfectant Residual5.
THM4, HAA67, HAN, CP, HK, CH, TOX, pH, Alkalinity, Turbidity, Temperature,
Calcium and Total Hardness, Disinfectant Residual5.
1TOC: total organic carbon. THM4: trihalomethane (four). HAA6: haloacetic acids (six). HAN: Haloacetonitriles. CP:
chloropicrin. HK: haloketones. CH: chloral hydrate. TOX: total organic halide. For THM4, HAA6, HAN, and HK, analytical results
for individual analytes shall be reported.
2 Entry point to distribution system only required for treatment plants that blend finished water with finished water from other
treatment plant(s) prior to entry point of distribution system. For most treatment plants, the finished water sample point and the
entry point to the distribution system are the same.
3 Simulated Distribution System (SDS) sample shall be collected at the finished water sampling point (or entry point to distribu-
tion system if finished water from two or more plants are blended prior to entering the distribution system) and analyzed using
the method specified in §141.142. PWSs using purchased finished water are not required to take an SDS sample at treatment
plants that use only purchased finished water.
4 For each treatment plant, one distribution system equivalent sample location (known as DSE) shall be chosen to correspond
to the SDS sample, one sample location shall be chosen to be representative of maximum residence time for the treatment
plant, and the remaining two sample locations shall be representative of the average residence time in the distribution system for
the treatment plant. PWSs using purchased finished water shall take three samples representing the average residence time in
the distribution system for the treatment plant and one representing the maximum residence time for the treatment plant (no DSE
sample required).
5 Free chlorine residual and total chlorine residual shall be measured in treatment systems using free chlorine. Total chlorine
residual, but not free chlorine residual, shall be measured in treatment systems using chloramines as the residual disinfectant.
6 A PWS may use TTHM compliance monitoring locations and analytical results under §141.30 of this part to the extent that
such locations and analytical results are consistent with the requirements of this section.
7 PWSs are encouraged to also analyze for the additional haloacetic acids bromodichloro-, chlorodibromo-, and tribromo-acetic
acid, and report the results as part of the reports specified in paragraph (c)(1) of this section.
(2) Additional requirements for PWSs using A PWS shall send samples of cyanogen chloride
chloramines. For each treatment plant that uses
chloramines for treatment or disinfection residual
maintenance, a PWS shall also conduct the addi-
tional sampling identified in table 2 of this section.
taken under the provisions of this paragraph for
analysis to EPA, following the procedures con-
tained in the "ICR Sampling Manual," EPA 814-
B-96-001, April 1996.
TABLE 2.—ADDITIONAL QUARTERLY MONITORING FOR TREATMENT PLANTS USING CHLORAMINES
Sampling point
Quarterly analyses
Treatment plant influent for purchased finished water1
Cyanogen Chloride2.
104
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§141.142
TABLE 2.—ADDITIONAL QUARTERLY MONITORING FOR TREATMENT PLANTS USING CHLORAMINES—
Continued
Sampling point
Distribution system sample point representing a maximum resi-
dence time in distribution system relative to the treatment
plant.
Quarterly analyses
Cyanogen Chloride2.
1 Applicable only when wholesale water provider is using chloramines.
2 EPA shall provide all analytical results to the PWS. The PWS shall report all results in its monthly report.
(3) Additional requirements for PWSs using hy-
pochlorite solutions. For each treatment plant that
uses hypochlorite solutions for treatment or dis-
infection residual maintenance, a PWS shall also
conduct the additional sampling identified in table
3 of this section.
TABLE 3.—ADDITIONAL QUARTERLY MONITORING FOR TREATMENT PLANTS USING HYPOCHLORITE
SOLUTIONS
Sampling point
Quarterly analyses
Treatment plant influent for non-finished water
Treatment plant influent for purchased finished water1
Hypochlorite Stock Solution
Finished Water Sample Point (Plant Effluent)
Chlorate.
Chlorate.
pH, Temperature, Free Residual Chlorine, Chlorate.
Chlorate.
1 Applicable only when wholesale water provider is using hypochlorite solutions.
(4) Additional requirements for PWSs using
ozone. For each treatment plant that uses ozone for
treatment, a PWS shall also conduct the additional
sampling identified in tables 4a and 4b of this sec-
tion. A PWS shall collect samples for bromate
taken under the provisions of this paragraph in du-
plicate, with the PWS analyzing one aliquot and
submitting the other aliquot for analysis to EPA,
following the procedures contained in the "ICR
Sampling Manual," EPA 814-B-96-001, April
1996. A PWS shall submit samples for aldehydes
taken under the provisions of this paragraph for
analysis to EPA, following the procedures con-
tained in the "ICR Sampling Manual," EPA 814-
B-96-001, April 1996.
TABLE 4a.—ADDITIONAL MONTHLY MONITORING FOR TREATMENT PLANTS USING OZONE
Sampling point
Monthly analyses
Ozone Contactor Influent
Each Ozone Contact Chamber Effluent1
Ozone Contactor Effluent
Finished Water Sample Point (Plant Effluent)
Bromide, bromate2'3, and ammonia.
Ozone residual.
Bromate2.
Bromate2.
1 Each ozone contactor can be subdivided into its contact chambers. Measure ozone residual in effluent of all contact cham-
bers until <0.05 mg/l is measured in two consecutive chambers.
2 EPA shall provide all analytical results to the PWS. The PWS shall report all results in its monthly report.
3PWSs are not required to analyze a bromate sample at this location. However, PWSs are still required to submit a sample to
EPA for analysis.
Table 4s.—ADDITIONAL QUARTERLY MONITORING FOR TREATMENT PLANTS USING OZONE
Sampling point
Quarterly analyses
Ozone Contactor Influent
Finished Water Sample Point (Plant Effluent)
Aldehydes1
Aldehydes1
and AOC/BDOC 2.
and AOC/BDOC 2
and AOC/BDOC 2.
1 EPA shall measure the following aldehydes: formaldehyde, acetaldehyde, propanal, butanal, pentanal, glyoxal, and methyl
glyoxal. EPA may analyze for other aldehydes. EPA shall provide all analytical results to the PWS. The PWS shall report all re-
sults in its monthly report.
2 Analysis and submission of data for both assimilable organic carbon (AOC) and biodegradable organic carbon (BDOC) are
optional. Analytical methods for AOC and BDOC are listed in "DBP/ICR Analytical Methods Manual," EPA 814-B-96-002, April
1996.
105
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§141.142
(5) Additional sampling requirements for PWSs
using chlorine dioxide. For each treatment plant
that uses chlorine dioxide for treatment or dis-
infection residual maintenance, a PWS shall also
conduct the additional sampling identified in tables
5a and 5b of this section. A PWS shall collect
samples for bromate taken under the provisions of
this paragraph in duplicate, with the PWS analyz-
TABLE SA—ADDITIONAL MONTHLY MONITORING
ing one aliquot and submitting the other aliquot
for analysis to EPA, following the procedures con-
tained in the "ICR Sampling Manual," EPA 814-
B-96-001, April 1996. A PWS shall submit sam-
ples for aldehydes taken under the provisions of
this paragraph for analysis to EPA, following the
procedures contained in the "ICR Sampling Man-
ual," EPA 814-B-96-001, April 1996.
FOR TREATMENT PLANTS USING CHLORINE DIOXIDE
Sampling point
Before first chlorine dioxide application
Before application of ferrous salts, sulfur reducing agents, or
GAC.
Finished water sample point (plant effluent)
Three distribution system sampling points (1 near first cus-
tomer, 1 in middle of distribution system, and 1 representa-
tive of maximum residence time in the distribution system).
Monthly analyses
Chlorine Dioxide Residual Chlorite Chlorate
Chlorate, bromate2-3.
Chlorine Dioxide Residual, Chlorite, Chlorate,
Chlorine Dioxide Residual, Chlorite, Chlorate,
Chlorine Dioxide Residual, Chlorite, Chlorat
perature.
pH.
Bromate 2.
3, pH, and Tern-
1 Applicable only when wholesale water provider is using chlorine dioxide.
2 EPA shall provide all analytical results to the PWS. The PWS shall report all results in its monthly report.
3 PWSs are not required to analyze a bromate sample at this location. However, PWSs are still required to submit a sample to
EPA for analysis.
TABLE 5b.—ADDITIONAL QUARTERLY MONITORING FOR TREATMENT PLANTS USING CHLORINE
DIOXIDE
Sampling point
Before First Chlorine Dioxide Application
Before First Point of Downstream Chlorine/Chloramine Applica-
tion After Chlorine Dioxide Addition.
Finished Water Sample Point (Plant Effluent)
Quarterly analyses
Aldehydes 1 and AOC/BDOC2
Aldehydes1 and AOC/BDOC2
Aldehydesi and AOC/BDOC2.
1EPA shall measure the following aldehydes: formaldehyde, acetaldehyde, propanal, butanal, pentanal, glyoxal, and methyl
glyoxal. EPA may analyze for other aldehydes. EPA shall provide all analytical results to the PWS. The PWS shall report all re-
sults in its monthly report.
2 Analysis and submission of data for both assimilable organic carbon (AOC) and biodegradable organic carbon (BDOC) are
optional. Analytical methods for AOC and BDOC are listed in "DBP/ICR Analytical Methods Manual," EPA 814-B-96-002, April
1996.
(6) Additional requirements. A PWS shall also
report the applicable information in tables 6a
through 6e of this section. A PWS is required to
provide the information in paragraphs (a)(6) (i)
through (iii) of this section for each unit process
listed in table 6c. The PWS may provide the infor-
mation in paragraphs (a)(6) (iv) and (v) of this
section for each unit process listed in table 6c. TIO
and TSO tracer studies shall be conducted as speci-
fied in "Guidance Manual for Compliance with
the Filtration and Disinfection Requirements for
Public Water Systems using Surface Water
Sources", appendix C.
(i) Unit process flow (MGD) at time of sam-
pling.
(ii) TIO (minutes). A PWS shall determine TIO
based on a one-time tracer study in the clearwell
of all treatment plants required to conduct micro-
biological monitoring under the provisions of
§ 141.141(d) of this subpart. The PWS may use re-
sults of a tracer study conducted to meet the re-
quirements of subpart H (Filtration and Disinfec-
tion) of this part to meet this requirement. For
subsequent TIO determinations, the PWS shall use
a flow-proportional interpolation of the clearwell
tracer study. For unit processes other than a
clearwell, a PWS shall either estimate TIO or use
an interpolation of tracer study TIO using multiple
flows for each unit process in which a disinfectant
residual exists.
(iii) Chemicals in use at time of sampling. Re-
port chemical name, chemical dose at time of sam-
pling, and measurement formula. Measurement
formulas (e.g., mg/1 as Aluminum) shall be pro-
vided to determine the correct amount of the
chemical compound being added.
(iv) Short circuiting factor (optional). The short
circuiting factor is an assumed value for the ratio
of TIO to nominal contact time (volume divided by
flow).
(v) TSO (minutes) (optional). TSO should be re-
ported only if based on a tracer study.
106
-------
§141.142
TABLE 6a.—PUBLIC WATER SYSTEM INFORMATION
Permanent data
Design data
Monthly data
Public Water System:
Utility Name
Public Water Supply Identification Number
(PWSID)
Water Industry Data Base (WIDE) Number [Op-
tional]
Official Contact Person:
Name
Mailing Address
Phone Number [optional]
FAX Number [optional]
ICR Contact Person:
Name
Mailing Address
Phone Number [optional]
FAX Number [optional]
E-Mail Address [optional]
Treatment Plant:1
Plant name
ICR plant number assigned by EPA2
PWSID number of treatment plant3
State approved (permitted) plant capacity (MGD)
Historical minimum water temperature (°C)
Installed sludge handling capacity (Ib/day)
Process Train:
Name
Plant type (e.g., Conventional Filtration, Direct
Filtration, In-Line Filtration, Two Stage Soften-
ing, Disinfection Only/Groundwater, Other
Groundwater treatment)
Process Train Type (e.g., Conventional Filtration,
Direct Filtration, In-Line Filtration, Two Stage
Softening, Disinfection Only/Groundwater,
Other Groundwater treatment)
Sampling Dates: From
(date) To (date).
Retail population on day
of sampling.
Wholesale population
on day of sampling.
Monthly average Retail
flow (MGD).
Monthly average Whole-
sale flow (MGD).
Hours of operation
(hours per day)
Sludge solids production
(Ib/day)
Percent solids in sludge
1 A PWS that operates more than one treatment plant shall report treatment plant information in this table for each treatment
plant.
2 EPA shall assign ICR plant number after the PWS submits sampling plan.
3 PWSID of treatment plant if different from the PWSID reported in "Public Water System".
107
-------
§141.142
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108
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113
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§141.142
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§141.142
(b) Analytical methods. (1) A PWS shall use the
methods identified in table 7 of this section for
conducting analyses required by this subpart.
115
-------
§141.142
andard method3
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-------
§141.143
(2) Analyses under this section shall be con-
ducted by laboratories that have received approval
from EPA to perform sample analysis for compli-
ance with this rule. Laboratories that wish to be-
come approved shall contact EPA in writing at
USEPA, Technical Support Division, ICR Labora-
tory Coordinator, 26 W. Martin Luther King
Drive, Cincinnati, OH 45268 not later than No-
vember 14, 1996. Requirements for approval are
included in "DBP/ICR Analytical Methods Man-
ual", EPA 814-B-96-002.
(c) Reporting. (1) A PWS shall report required
data and information collected under the provi-
sions of paragraph (a) of this section to EPA,
using an EPA-specified computer readable format.
A PWS shall submit a monthly report that indi-
cates the analytical results of all samples collected,
including quarterly samples taken in that same
month, and all process train data. These reports
shall be submitted on a diskette no later than the
fourth month following sampling. In addition to
the information in tables 1 through 6 in paragraph
(a) of this section, reports shall include PWSID,
ICR plant identification, sample date, analysis
date, laboratory identification numbers, analytical
methods used, sample identification numbers,
quality assurance code, internal standards, surro-
gate standards, and preserved sample pH, if appro-
priate.
(2) Additional Requirements. A PWS shall sub-
mit a DBF and related monitoring sampling plan
for EPA approval, using software provided by
EPA, for each treatment plant specified in
§141.141(b)(2) of this subpart that indicates sam-
pling point locations and monitoring to be con-
ducted at each point, and process treatment train
information. This sampling plan shall be submitted
to EPA at the same time and on the same diskette
as the microbiological sampling plan required by
§ 141.143(c)(3) and no later than eight weeks after
the PWS receives the Notice of ICR Final Appli-
cability Determination from EPA, using the proce-
dure specified in "ICR Sampling Manual", EPA
814-B-96-001, April 1996.
(3) All reports required by this section shall be
submitted to USEPA (ICR4600), ICR Data Center,
Room 1111 East Tower, 401 M Street SW., Wash-
ington, DC 20460.
(4) The PWS shall keep all data for at least
three years following data submission to EPA.
(d) Incorporation by reference. The documents
and methods listed in paragraphs (d) (1) and (2)
of this section are incorporated by reference for
purposes specified in this section. This incorpora-
tion by reference was approved by the Director of
the Federal Register in accordance with 5 U.S.C.
552(a) and 1 CFR part 51. Copies may be in-
spected at USEPA, Drinking Water Docket (4101),
401 M Street SW., Washington, DC 20460, or at
Office of the Federal Register, 800 North Capitol
Street, NW., Suite 700, Washington, DC.
(1) "Standard Methods for the Examination of
Water and Wastewater," 19th edition, 1995.
Available from the American Public Health Asso-
ciation, 1015 Fifteenth Street, NW., Washington,
DC 20005.
(2) "Guidance Manual for Compliance with the
Filtration and Disinfection Requirements for Pub-
lic Water Systems using Surface Water Sources",
Appendices C and O, 1991. Available from Amer-
ican Water Works Association, 6666 West Quincy
Avenue, Denver, CO 80235.
§ 141.143 Microbial monitoring.
(a) Monitoring requirements. (1) Parameters. A
PWS shall sample for the following parameters for
the period specified in § 141.141(d) of this subpart
and at the location specified and using the analyt-
ical methods specified in paragraphs (a)(2) and
(b), respectively, of this section. For each sample,
a PWS shall determine the densities of total coli-
forms, fecal coliforms or Escherichia coli,
Giardia, Cryptosporidium, and total culturable vi-
ruses for each treatment plant required to monitor
under the provisions of §141.141(b) of this sub-
part.
(2) Monitoring locations, (i) A PWS shall col-
lect one sample of the treatment plant influent at
the frequency specified in § 141.141(d) of this sub-
part.
(A) A sample of treatment plant influent shall
be taken at a location at the upstream end of a
treatment plant where waters from all intakes are
blended prior to any treatment or chemical addi-
tion.
(B) For treatment plants that have multiple in-
takes and add chemicals at the intake, the PWS
shall take an intake sample of the water resource
with the poorest microbiological quality (or, if that
cannot be determined, the water resource with the
highest flow) collected before chemical addition
and before pretreatment. If the intakes are ex-
pected to have the same source water quality, one
representative intake sample may be taken. If a
disinfectant is added at or before the intake (e.g.,
for zebra mussel control), the sample shall be
taken in the vicinity of the intake in such manner
that the sample is not contaminated by the dis-
infectant.
(ii) A PWS that, during any of the first twelve
months of monitoring at the treatment plant influ-
ent, detects 10 or more Giardia cysts, or 10 or
more Cryptosporidium oocysts, or one or more
total culturable viruses, in one liter of water; or
calculates a numerical value of the Giardia or
Cryptosporidium concentration equal to or greater
than 1000 per 100 liters or virus concentration
117
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§141.143
equal to or greater than 100 per 100 liters; or de-
tects no pathogens in the sample and calculates a
numerical value of the detection limit for Giardia
or Cryptosporidium concentration equal to or
greater than 1000 per 100 liters or virus concentra-
tion equal to or greater than 100 per 100 liters;
shall also collect one sample of finished water per
month at each such treatment plant, beginning in
the first calendar month after the PWS learns of
such a result. The sample of finished water shall
be collected at a point after which all treatment
processes for a particular treatment plant are com-
plete (including the clearwell and final point of
disinfection) and before the distribution system be-
gins. For each sample of finished water, PWSs
shall determine the density of total coliforms, fecal
coliforms or E. coli, Giardia, Cryptosporidium,
and total culturable viruses. A PWS shall continue
finished water monitoring monthly until 18 months
of treatment plant influent monitoring has been
completed.
(iii) In lieu of conducting finished water mon-
itoring of Giardia and Cryptosporidium specified
in paragraph (a)(2)(ii) of this section, a PWS may
notify EPA in its response to the notice of applica-
bility required by paragraph (c)(3)(i) of this sec-
tion that the PWS will comply with the alternative
monitoring requirements in paragraphs (a)(2)(iii)
(A) and (B) of this section. The PWS shall still
conduct finished water monitoring for all other
microorganisms, except for Giardia and
Cryptosporidium monitoring in the finished water.
(A) The PWS measures the particle counts in
the treatment plant influent, at points immediately
prior to filtration and after filtration (but before
the addition of post-filtration chemicals). Particle
counting shall be conducted on the same treatment
train as is sampled for monitoring conducted under
the provisions of §141.142(a) of this subpart.
Such samples shall be collected monthly during
the entire 18-month monitoring period, using the
procedures contained in the "ICR Sampling Man-
ual", EPA 814-B-96-001, April 1996. The PWS
may use either grab or continuous particle count-
ing. Particle counting shall be conducted during
the same time as protozoa monitoring required by
paragraph (a)(2)(iii)(B) of this section.
(7) If grab sampling is conducted, the PWS
shall collect 12 samples per location at the treat-
ment plant influent, filter influent, and filter efflu-
ent, over either a 24-hour period or the duration
of the filter run, whichever is shorter.
(2) If continuous particle counting is conducted,
the PWS shall collect 12 instrument readings per
location, evenly spaced in time, at the treatment
plant influent, filter influent, and filter effluent,
over either a 24-hour period or the duration of the
filter run, whichever is shorter.
(3) For each sample, the PWS shall measure
particle counts per milliliter in the size ranges of
3|lm-5|lm, 5|lm-7|lm, 7|lm-10|lm, 10|lm-15|lm,
and >15|lm, and shall report to EPA the mean
value in each size range of the 12 values collected
over the sampling period.
(B) The PWS collects and analyzes at least four
consecutive months of Giardia and
Cryptosporidium samples at the same locations
specified in paragraph (a)(2)(iii)(A) of this section,
within the first 12 months of the 18 months of
sampling. The PWS shall collect Giardia and
Cryptosporidium samples during the same time pe-
riod as it is conducting particle counting. The min-
imum sample volume for Giardia and
Cryptosporidium analyses shall be 100 liters for
treatment plant influent and 1,000 liters for water
that has undergone any treatment. The PWS may
use results of monitoring for Giardia and
Cryptosporidium in the treatment plant influent
specified in paragraph (a)(2) of this section to
meet the requirements of this paragraph as long as
such monitoring meets the requirements of both
this paragraph and paragraph (a)(2) of this section.
(iv) If a PWS has monitored total coliforms,
fecal coliforms, or E. coli in the treatment plant
influent for at least five days/week for any period
of six consecutive months beginning after January
1, 1994 and 90% of all samples taken in that six-
month period contained no greater than 100 total
coliforms/100 ml, or 20 fecal coliforms/100 ml, or
20 E. coli/WO ml, the PWS may request to not
conduct virus monitoring for that treatment plant,
for the duration of the requirement. Even if ap-
proved, the PWS may subsequently be required to
monitor under the criteria in paragraph
(a)(2)(iv)(A) of this section. This request shall be
submitted as part of the response to the notice of
applicability required by paragraph (c)(3)(i) of this
section.
(A) If the PWS is subsequently required to
monitor the finished water under the provisions of
paragraph (a)(2)(ii) of this section, the PWS shall
monitor, along with the other specified organisms,
total culturable viruses, as specified in paragraph
(a)(2)(i) of this section for treatment plant influent
and as specified in paragraph (a)(2)(ii) of this sec-
tion for finished water, until 18 months of micro-
bial monitoring is completed.
(B) A PWS may use coliform data collected
under § 141.71(a)(l) of this part for this purpose
but, if this is done, the PWS shall submit two sep-
arate monitoring reports. One report, to meet the
requirements of § 141.71(a)(l) of this part, shall
continue to be submitted as required by subpart H
of this part. The other report shall be submitted to
meet the requirements of paragraph (c)(3) of this
section.
118
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§141.143
(C) If a PWS does not provide EPA with six
months of suitable coliform results as part of its
response to the notice of applicability, the PWS
shall begin virus monitoring. If a PWS begins
virus monitoring and subsequently provides EPA
with six months of coliform results that are at or
below the indicated density limit, and EPA ap-
proves the request to not conduct virus monitoring,
the PWS may avoid subsequent treatment plant
virus monitoring.
(b) Analytical Methods. (1) A PWS shall use
the methods listed in paragraphs (b)(l) (i) through
(v) of this section for monitoring under this sub-
part.
(i) Fecal coliforms—specified at § 141.74(a)(l)
of this part, except that whenever paired source
water samples and finished water samples are to
be collected, only the fecal coliform procedure
(Standard Method 922 IE), as specified in
§ 141.74(a)(l) of this part, using EC Medium, can
be used. The time between sample collection and
initiation of sample analysis shall not exceed eight
hours. Samples shall be chilled, but not frozen,
and shipped at a temperature of less than 10°C.
Samples not processed immediately at the labora-
tory shall be refrigerated. The laboratory must in-
validate samples that arrive frozen or at a tempera-
ture greater than 10°C.
(ii) Total coliforms—specified at § 141.74(a)(2)
of this part. The time between sample collection
and initiation of sample analysis shall not exceed
eight hours. Samples shall be chilled, but not fro-
zen, and shipped at a temperature of less than
10°C. Samples not processed immediately at the
laboratory shall be refrigerated. The laboratory
must invalidate samples that arrive frozen or at a
temperature greater than 10°C.
(iii) E. coli—as specified by § 141.21(f)(6) (i)
through (iii) of this part, except that the density
shall be reported. PWSs using the EC+MUG and
ONPG-MUG tests shall use either a 5-tube or 10-
tube 10-ml configuration, with serial dilutions of
the original sample as needed, and report the Most
Probable Number. PWSs may also use a commer-
cial multi-test system for E. coli enumeration, as
long as they use M-Endo medium for the initial
isolation of the organisms, pick every colony on
the plate with the appearance of a total coliform,
and streak it for purification before subjecting the
colony to a multi-test system. The time between
sample collection and initiation of sample analysis,
regardless of method used, shall not exceed eight
hours. Samples shall be chilled, but not frozen,
and shipped at a temperature of less than 10°C.
Samples not processed immediately at the labora-
tory shall be refrigerated. The laboratory must in-
validate samples that arrive frozen or at a tempera-
ture greater than 10°C.
(iv) Giardia and Cryptosporidium—ICR Proto-
zoan Method, as described in "ICR Microbial
Laboratory Manual", EPA 600/R-95/178, April
1996.
(v) Total culturable viruses—Virus Monitoring
Protocol, as described in "ICR Microbial Labora-
tory Manual", EPA 600/R-95/178, April 1996.
(2) Laboratories. A PWS shall use EPA-ap-
proved laboratories to analyze for Giardia,
Cryptosporidium, and total culturable viruses. A
PWS shall use laboratories certified for microbi-
ology analyses by either EPA or a State under the
EPA or State drinking water program for the anal-
ysis of total coliforms, fecal coliforms, and E. coli.
Laboratories that wish to become approved shall
contact EPA in writing at USEPA, Technical Sup-
port Division, ICR Laboratory Coordinator, 26 W.
Martin Luther King Drive, Cincinnati, OH 45268
not later than August 14, 1996. Laboratory ap-
proval criteria for Giardia, Cryptosporidium, and
total culturable viruses are found in the "ICR Mi-
crobial Laboratory Manual", EPA 600/R-95/178,
April 1996.
(3) A PWS shall send EPA a virus archive sam-
ple prepared as described in Chapter VIII of "ICR
Microbial Laboratory Manual", EPA 600/R-95/
178, April 1996, for each water sample identified
in paragraph (b)(3) (i) or (ii) of this section.
(i) Samples of treatment plant influent and fin-
ished water, for every month after the PWS learns
that viruses were detected in any previous sample
of finished water.
(ii) Samples of treatment plant influent and fin-
ished water, regardless of whether viruses are de-
tected in the finished water, for every month after
the PWS learns that a density of at least 10 vi-
ruses/L was detected in any previous treatment
plant influent water sample.
(iii) A PWS may arrange to have virus samples
shipped directly to EPA by its virus laboratory for
archiving.
(iv) Samples shall be sent on dry ice to ICR
Virus Archiving Coordinator following the proce-
dures specified in "ICR Microbial Laboratory
Manual", EPA 600/R-95/178, April 1996.
(c) Reporting. (1) A PWS shall report data and
information required under paragraphs (a) and (b)
of this section using an EPA-specified computer
readable format. A PWS shall submit a monthly
report on a diskette, no later than the fourth month
following sampling, that indicates the analytical
results of all samples collected. Reports shall in-
clude PWSID, ICR plant identification, sample
date, analysis date, laboratory identification num-
bers, analytical methods used, sample identifica-
tion numbers, analytical batch numbers, quality as-
surance code, and processing batch numbers, if ap-
propriate.
119
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§141.144
(2)(i) For a PWS using the alternative to
Giardia and Cryptosporidium monitoring in para-
graph (a)(2)(iii) of this section, the PWS shall re-
port to EPA the mean value in each size range of
the 12 particle counting values collected over the
sampling period. In addition, during the four con-
secutive months when the PWS collects Giardia
and Cryptosporidium samples specified in para-
graph (a)(2)(iii)(B) of this section, the PWS shall
report to EPA, for each measured site, the den-
sities of Giardia and Cryptosporidium at each
measured site. This information shall be submitted
at the same time as the report required by para-
graph (c)(l) of this section.
(ii) A PWS that is not required to monitor for
total culturable viruses under the provisions of
paragraph (a)(2)(iv) of this section shall report to
EPA the dates and results of all total coliform,
fecal coliform, or E. coli monitoring used by the
PWS to determine that additional virus monitoring
is unnecessary. The report shall indicate all data
collected during the six-month time period, and
how the data were used to calculate compliance
with this requirement.
(3) Additional Requirements. A PWS shall sub-
mit a microbiological sampling plan for EPA ap-
proval, using software provided by EPA, for each
treatment plant specified in §141.141(b) of this
subpart that indicates sampling point locations and
monitoring to be conducted at each point. This
sampling plan shall be submitted to EPA at the
same time and on the same diskette as the DBF
and related monitoring sampling plan required by
§ 141.142(c)(2) and no later than eight weeks after
the PWS receives the Notice of ICR Final Appli-
cability Determination from EPA, using the proce-
dure specified in "ICR Sampling Manual", EPA
814-B-96-001, April 1996.
(4) All reports required by this section shall be
submitted to USEPA (ICR4600), ICR Data Center,
Room 1111 East Tower, 401 M Street SW., Wash-
ington, DC 20460.
(5) The PWS shall keep all data for at least
three years following data submission to EPA.
§141.144 Disinfection byproduct pre-
cursor removal studies.
(a) TOC, UFCTOX, THM4, and HAAS applica-
bility monitoring. A PWS required to comply with
this section shall conduct TOC, UFCTOX, THM4,
and HAAS monitoring specified in § 141.141(e)(2)
of this subpart. A PWS may use monitoring results
from samples required by § 141.142(a) of this sub-
part to meet this requirement to the extent that all
requirements in each section are met.
(b) Treatment study requirements. A PWS iden-
tified in § 141.141(b) of this subpart shall conduct
disinfection byproduct precursor removal studies
(treatment studies). The treatment study shall use
bench-and/or pilot-scale systems for at least one of
the two appropriate candidate technologies (GAC
or membrane processes) for the reduction of or-
ganic DBF precursors. The treatment studies shall
be designed to yield representative performance
data and allow the development of national treat-
ment cost estimates for different levels of organic
disinfection byproduct control. The treatment ob-
jective of the studies is the achievement of levels
of byproducts less than 40 |lg/L TTHM and 30
|lg/L HAAS, as an annual average. The treatment
study shall be conducted with the effluent from
treatment processes already in place that remove
disinfection byproduct precursors and TOC, to
simulate the most likely treatment scenario. PWSs
are permitted to optimize these processes or pilot
additional processes appropriate for pretreatment
for treatment studies. In order to minimize the for-
mation of DBFs, the test water for both the bench-
and pilot-scale tests shall be obtained from a loca-
tion before the first point at which oxidants or dis-
infectants that form halogenated disinfection by-
products are added. If the use of these oxidants or
disinfectants precedes any full-scale treatment
process that removes disinfection byproduct pre-
cursors, then bench- and pilot-scale treatment
processes that represent these full-scale treatment
processes are required prior to the GAC or mem-
brane process. A PWS should exercise sound
judgement in its selection of treatment process to
study and the point at which to obtain water for
study. Depending upon the type of treatment
study, the study shall be conducted in accordance
with the following criteria.
(1) Bench-scale tests are continuous flow tests
using rapid small scale column test (RSSCT) for
GAC and small scale membrane test apparatus as
specified in "ICR Manual for Bench- and Pilot-
scale Treatment Studies" (EPA 814-B-96-003,
April 1996).
(i) GAC bench-scale testing shall include infor-
mation on the experimental conditions and results
necessary to adequately determine the scaled-up
breakthrough curves under the conditions of each
RSSCT. At least two empty bed contact times
(EBCTs) shall be tested using the RSSCT. These
RSSCT EBCTs shall be designed to represent a
full-scale EBCT of 10 min and a full-scale EBCT
of 20 min. Additional EBCTs may be tested. The
RSSCT testing is described in the "ICR Bench-
and Pilot-scale Treatment Study Manual" (EPA
814-B-96-003, April 1996). The RSSCT tests at
each EBCT shall be run quarterly to ascertain the
impact of seasonal variation. Thus a total of four
RSSCTs at each EBCT should be run. When sea-
sonal variation is not significant, as is the case in
most ground waters, the quarterly tests should be
run to investigate other variables, as described in
the "ICR Bench- and Pilot-scale Treatment Study
120
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§141.144
Manual" (EPA 814-B-96-003, April 1996). The
RSSCT shall be ran until the effluent TOC con-
centration is at least 70% of the average influent
TOC concentration or the effluent TOC reaches a
plateau at greater than 50% of the influent TOC
(i.e., the effluent TOC does not increase over a
two-month full-scale-equivalent time period by
more than 10% of the average influent TOC con-
centration) or a RSSCT operation time that rep-
resents the equivalent of one year of full-scale op-
eration, whichever is shorter. The average influent
TOC is defined as the running average of the in-
fluent TOC at the time of effluent sampling. If,
after completion of the first quarter RSSCTs, the
PWS finds that the effluent TOC reaches 70% of
the average influent TOC within 20 full-scale
equivalent days on the EBCT=10 min test and
within 30 full-scale equivalent days on the
EBCT=20 min test, the last three quarterly tests
shall be conducted using membrane bench-scale
testing with only one membrane, as described in
paragraph (b)(l)(ii) of this section.
(ii) Membrane bench-scale testing shall include
information on the experimental conditions and re-
sults necessary to determine the water quality pro-
duced by the membrane treatment and a prelimi-
nary estimate of productivity. The testing proce-
dures and monitoring and reporting requirements
are described in the "ICR Bench- and Pilot-scale
Treatment Study Manual" (EPA 814-B-96-003,
April 1996). A minimum of two different mem-
brane types with nominal molecular weight cutoffs
of less than 1000 shall be investigated. Membrane
tests shall be conducted quarterly over one year to
determine the seasonal variation. Thus, a total of
four bench-scale tests with each membrane shall
be ran. If seasonal variation is not significant, as
is the case of most ground waters, the quarterly
tests should be ran to evaluate the impact of other
variables, such as pretreatment, or additional mem-
branes could be tested. Alternatively, a PWS may
choose to conduct a long-term, single element
study using a single membrane type in lieu of
evaluating two membranes in four quarterly short-
term tests, using the protocol in the "ICR Bench-
and Pilot-scale Treatment Study Manual" (EPA
814-B-96-003, April 1996).
(2) A PWS shall conduct pilot-scale testing as
continuous flow tests. For GAC, the PWS shall
use GAC of particle size representative of that
used in full-scale practice, a pilot GAC column
with a minimum inner diameter of 2.0 inches, and
hydraulic loading rate (volumetric flow rate/col-
umn cross-sectional area) representative of that
used in full-scale practice. The PWS shall design
a pilot-scale membrane system as a staged array of
elements as described in "ICR Manual for Bench-
and Pilot-scale Treatment Studies", EPA 814-B-
96-003, April 1996.
(i) GAC pilot-scale testing. (A) The pilot testing
procedures and monitoring and reporting require-
ments are prescribed in the "ICR Bench- and
Pilot-scale Treatment Study Manual" (EPA 814-
B-96-003, April 1996).
(B) At least two EBCTs shall be tested,
EBCT=10 min and EBCT=20 min, using the pilot-
scale plant. Additional EBCTs may be tested.
(C) The pilot tests at each EBCT shall continue
until the effluent TOC concentration is at least
70% of the average influent TOC concentration on
two consecutive TOC sample dates that are at
least two weeks apart or the effluent TOC reaches
a plateau at greater than 50% of the influent TOC
(i.e., the effluent TOC does not increase over a
two-month period by more than 10% of the aver-
age influent TOC concentration). If either of these
criteria is met for the 20-minute EBCT prior to six
months ran time, a second pilot test at each EBCT
shall be conducted following the same sampling
requirements. In all cases the maximum length of
the pilot study (one or two tests) is one year. The
average influent TOC is defined as the running av-
erage of the influent TOC at the time of sampling.
The pilot-scale testing shall be timed to capture
seasonal variation. If seasonal variation is not sig-
nificant, as is the case with most ground waters,
the pilot-scale test runs shall be designed to evalu-
ate the impact of other variables, such as
pretreatment.
(ii) Membrane pilot-scale testing.
(A) The membrane pilot testing procedures and
monitoring and reporting requirements are pre-
scribed in the "ICR Bench- and Pilot-scale Treat-
ment Study Manual" (EPA 814-B-96-003, April
1996).
(B) The membrane test system shall be designed
to yield information on loss of productivity (foul-
ing), pretreatment requirements, cleaning require-
ments, and permeate quality and operated at a re-
covery representative of full-scale operation.
(C) The pilot-scale testing shall be ran for one
year.
(3) Chlorination under simulated distribution
system (SDS) conditions shall be used prior to the
measurement of THM4, HAA6, TOX, and chlo-
rine demand. These conditions are described in
"ICR Manual for Bench- and Pilot-scale Treat-
ment Studies" (EPA 814-B-96-003, April 1996)
and represent the average conditions in the dis-
tribution system at that time with regard to hold-
ing time, temperature, pH, and chlorine residual. If
chlorine is not used as the final disinfectant in
practice, then a chlorine dose shall be set to yield
a free chlorine residual of 1.0 to 0.5 mg/1 after a
holding time, temperature, and pH equal to those
representative of the distribution system averages.
121
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§141.144
(c) Analytical Methods. All analyses required by
paragraphs (a) and (b) of this section shall be con-
ducted using the methods and the mandatory ana-
lytical and quality control procedures contained in
either "DBP/ICR Analytical Methods Manual"
(EPA 814-B-96-002, April 1996) or "ICR Man-
ual for Bench- and Pilot-scale Treatment Studies"
(EPA 814-B-96-003, April 1996). In addition,
TOC analyses required by paragraph (a) of this
section shall be conducted by a laboratory ap-
proved under the provisions of § 141.142(b)(2) of
this subpart.
(d) Reporting. (1) TOC and UFCTOX reporting.
A PWS shall submit the monthly results of 12
months of TOC or UFCTOX monitoring required
by paragraph (a)(l) of this section and the annual
average of those monthly results not later than Oc-
tober 14, 1997. This report is not required to be
submitted electronically. Although a PWS may use
monitoring results from samples required by
§141.142(a) of this subpart to meet this require-
ment, it shall submit separate reports to meet this
reporting requirement and the reporting require-
ment in § 141.142(c)(l) of this subpart.
(2) A PWS shall report all data collected under
the provisions of paragraph (b) of this section. In
addition, a PWS shall report the information for
water resource and full-scale and pilot- or bench-
scale pretreatment processes that precede the
bench/pilot systems. These data and information
shall be reported in the format specified in "ICR
Manual for Bench- and Pilot-scale Treatment
Studies" (EPA 814-B-96-003, April 1996) not
later than July 14, 1999.
(3) All reports required by this section shall be
submitted to USEPA, Technical Support Division,
ICR Precursor Removal Studies Coordinator, 26
West Martin Luther King Drive, Cincinnati, OH
45268.
122
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PART 142—NATION AL PRIMARY
DRINKING WATER REGULATIONS
IMPLEMENTATION
Subpart A—General Provisions
Sec.
142.1 Applicability.
142.2 Definitions.
142.3 Scope.
142.4 State and local authority.
Subpart B—Primary Enforcement Re-
sponsibility
142.10 Requirements for a determination of primary en-
forcement responsibility.
142.11 Initial determination of primary enforcement re-
sponsibility.
142.12 Revision of State programs.
142.13 Public hearing.
142.14 Records kept by States.
142.15 Reports by States.
142.16 Special primacy requirements.
142.17 Review of State programs and procedures for
withdrawal of approved primacy programs.
142.18 EPA review of State monitoring determinations.
142.19 EPA review of State implementation of national
primary drinking water regulations for lead and cop-
per.
Subpart C—Review of State-Issued
Variances and Exemptions
142.20 State-issued variances and exemptions.
142.21 State consideration of a variance or exemption
request.
142.22 Review of State variances, exemptions and
schedules.
142.23 Notice to State.
142.24 Administrator's rescission.
Subpart D—Federal Enforcement
142.30 Failure by State to assure enforcement.
142.31 [Reserved]
142.32 Petition for public hearing.
142.33 Public hearing.
142.34 Entry and inspection of public water systems.
Subpart E—Variances Issued by the Ad-
ministrator
142.40 Requirements for a variance.
142.41 Variance request.
142.42 Consideration of a variance request.
142.43 Disposition of a variance request.
142.44 Public hearings on variances and schedules.
142.45 Action after hearing.
142.46 Alternative treatment techniques.
Subpart F—Exemptions Issued by the
Administrator
142.50 Requirements for an exemption.
142.51 Exemption request.
142.52 Consideration of an exemption request.
142.53 Disposition of an exemption request.
142.54 Public hearings on exemption schedules.
142.55 Final schedule.
142.56 Extension of date for compliance.
142.57 Bottled water and point-of-use devices, [effective
until 7-30-92]
142.57 Bottled water, point-of-use, and point- of- entry
devices, [effective 7-30-92]
Subpart G— Identification of Best Tech-
nology, Treatment Techniques or
Other Means Generally Available
142.60 Variances from the maximum contaminant level
for total trihalomethanes.
142.61 Variances from the maximum contaminant level
for fluoride.
142.62 Variances and exemptions from the maximum
contaminant levels for synthetic organic chemicals
and exemptions from the treatment technique for
lead and copper, [effective 7-30-92]
142.63 Variances and exemptions from the maximum
contaminant level for total coliforms.
142.64 Variances and exemptions from the requirements
of part 141, subpart H — Filtration and Disinfection.
Subpart H— Indian Tribes
142.72 Requirements for Tribal eligibility.
142.76 Request by an Indian Tribe for a determination
of eligibility.
142.78 Procedure for processing an Indian Tribe's appli-
cation.
Subpart I — Administrator's Review of
State Decisions that Implement Cri-
teria Under Which Filtration Is Re-
quired
142.80 Review procedures.
142.81 Notice to the State.
Subpart J— Procedures for PWS Admin-
istrative Compliance Orders
142.201 Purpose.
142.202 Definitions.
142.203 Proposed administrative compliance orders.
142.204 Notice of proposed administrative compliance
orders.
142.205 Opportunity for public hearings; opportunity for
State conferences.
142.206 Conduct of public hearings.
142.207 Issuance, amendment or withdrawal of adminis-
trative compliance order.
142.208 Administrative assessment of civil penalty for
violation of administrative compliance order.
SOURCE: 41 FR 2918, Jan. 20, 1976, unless otherwise
noted.
Subpart A — General Provisions
§142.1 Applicability.
This part sets forth, pursuant to sections 1413
through 1416, 1445, and 1450 of the Public Health
1
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§142.2
Service Act, as amended by the Safe Drinking
Water Act, Public Law 93-523, regulations for the
implementation and enforcement of the national
primary drinking water regulations contained in
part 141 of this chapter.
§142.2 Definitions.
As used in this part, and except as otherwise
specifically provided:
Act means the Public Health Service Act.
Administrator means the Administrator of the
United States Environmental Protection Agency or
his authorized representative.
Agency means the United States Environmental
Protection Agency.
Approved State primacy program consists of
those program elements listed in §142.11(a) that
were submitted with the initial State application
for primary enforcement authority and approved
by the EPA Administrator and all State program
revisions thereafter that were approved by the
EPA Administrator.
Contaminant means any physical, chemical, bio-
logical, or radiological substance or matter in
water.
Federal agency means any department, agency,
or instrumentality of the United States.
Indian Tribe means any Indian Tribe having a
Federally recognized governing body carrying out
substantial governmental duties and powers over a
defined area.
Interstate Agency means an agency of two or
more States established by or under an agreement
or compact approved by the Congress, or any
other agency of two or more States or Indian
Tribes having substantial powers or duties pertain-
ing to the control of pollution as determined and
approved by the Administrator.
Maximum contaminant level means the maxi-
mum permissible level of a contaminant in water
which is delivered to the free flowing outlet of the
ultimate user of a public water system; except in
the case of turbidity where the maximum permis-
sible level is measured at the point of entry to the
distribution system. Contaminants added to the
water under circumstances controlled by the user,
except for those resulting from corrosion of piping
and plumbing caused by water quality are ex-
cluded from this definition.
Municipality means a city, town, or other public
body created by or pursuant to State law, or an In-
dian Tribe which does not meet the requirements
of subpart H of this part.
National primary drinking water regulation
means any primary drinking water regulation con-
tained in part 141 of this chapter.
Person means an individual; corporation; com-
pany; association; partnership; municipality; or
State, federal, or Tribal agency.
Primary enforcement responsibility means the
primary responsibility for administration and en-
forcement of primary drinking water regulations
and related requirements applicable to public water
systems within a State.
Public water system means a system for the
provision to the public of piped water for human
consumption, if such system has at least fifteen
service connections or regularly serves an average
of at least twenty-five individuals daily at least 60
days out of the year. Such term includes (1) any
collection, treatment, storage, and distribution fa-
cilities under control of the operator of such sys-
tem and used primarily in connection with such
system, and (2) any collection or pretreatment
storage facilities not under such control which are
used primarily in connection with such system.
Sanitary survey means an onsite review of the
water source, facilities, equipment, operation and
maintenance of a public water system for the pur-
pose of evaluating the adequacy of such source,
facilities, equipment, operation and maintenance
for producing and distributing safe drinking water.
State means one of the States of the United
States, the District of Columbia, the Common-
wealth of Puerto Rico, the Virgin Islands, Guam,
American Samoa, the Commonwealth of the
Northern Mariana Islands, the Trust Territory of
the Pacific Islands, or an eligible Indian tribe.
State primary drinking water regulation means
a drinking water regulation of a State which is
comparable to a national primary drinking water
regulation.
State program revision means a change in an
approved State primacy program.
Supplier of water means any person who owns
or operates a public water system.
Treatment technique requirement means a re-
quirement of the national primary drinking water
regulations which specifies for a contaminant a
specific treatment technique(s) known to the Ad-
ministrator which leads to a reduction in the level
of such contaminant sufficient to comply with the
requirements of part 141 of this chapter.
[41 FR 2918, Jan. 20, 1976, as amended at 53 FR 37410,
Sept. 26, 1988; 54 FR 52137, Dec. 20, 1989; 59 FR
64344, Dec. 14, 1994]
§142.3 Scope.
(a) Except where otherwise provided, this part
applies to each public water system in each State;
except that this part shall not apply to a public
water system which meets all of the following
conditions:
(1) Which consists only of distribution and stor-
age facilities (and does not have any collection
and treatment facilities);
-------
§142.10
(2) Which obtains all of its water from, but is
not owned or operated by, a public water system
to which such regulations apply;
(3) Which does not sell water to any person;
and
(4) Which is not a carrier which conveys pas-
sengers in interstate commerce.
(b) In order to qualify for primary enforcement
responsibility, a State's program for enforcement
of primary drinking water regulations must apply
to all other public water systems in the State, ex-
cept for:
(1) Public water systems on carriers which con-
vey passengers in interstate commerce;
(2) Public water systems on Indian land with re-
spect to which the State does not have the nec-
essary jurisdiction or its jurisdiction is in question;
or
(3) Public water systems owned or maintained
by a Federal agency where the Administrator has
waived compliance with national primary drinking
water regulations pursuant to section 1447(b) of
the Act.
(c) Section 1451 of the SDWA authorizes the
Administrator to delegate primary enforcement re-
sponsibility for public water systems to Indian
Tribes. An Indian Tribe must meet the statutory
criteria at 42 U.S.C. 300j-ll(b)(l) before it is eli-
gible to apply for Public Water System Super-
vision grants and primary enforcement responsibil-
ity. All primary enforcement responsibility re-
quirements of parts 141 and 142 apply to Indian
Tribes except where specifically noted.
[41 FR 2918, Jan. 20, 1976, as amended at 53 FR 37410,
Sept. 26, 1988; 59 FR 64344, Dec. 14, 1994]
§ 142.4 State and local authority.
Nothing in this part shall diminish any authority
of a State or political subdivision to adopt or en-
force any law or regulation respecting drinking
water regulations or public water systems, but no
such law or regulation shall relieve any person of
any requirements otherwise applicable under this
part.
Subpart B—Primary Enforcement
Responsibility
§ 142.10 Requirements for a determina-
tion of primary enforcement re-
sponsibility.
A State has primary enforcement responsibility
for public water systems in the State during any
period for which the Administrator determines,
based upon a submission made pursuant to
§ 142.11, and submission under § 142.12, that such
State, pursuant to appropriate State legal authority:
(a) Has adopted drinking water regulations
which are no less stringent than the national pri-
mary drinking water regulations (NPDWRs) in ef-
fect under part 141 of this chapter;
(b) Has adopted and is implementing adequate
procedures for the enforcement of such State regu-
lations, such procedures to include:
(1) Maintenance of an inventory of public water
systems.
(2) A systematic program for conducting sani-
tary surveys of public water systems in the State,
with priority given to sanitary surveys of public
water systems not in compliance with State pri-
mary drinking water regulations.
(3)(i) The establishment and maintenance of a
State program for the certification of laboratories
conducting analytical measurements of drinking
water contaminants pursuant to the requirements
of the State primary drinking water regulations in-
cluding the designation by the State of a labora-
tory officer, or officers, certified by the Adminis-
trator, as the official(s) responsible for the State's
certification program. The requirements of this
paragraph may be waived by the Administrator for
any State where all analytical measurements re-
quired by the State's primary drinking water regu-
lations are conducted at laboratories operated by
the State and certified by the Agency. Until such
time as the Agency establishes a National quality
assurance program for laboratory certification the
State shall maintain an interim program for the
purpose of approving those laboratories from
which the required analytical measurements will
be acceptable.
(ii) Upon a showing by an Indian Tribe of an
intergovernmental or other agreement to have all
analytical tests performed by a certified laboratory,
the Administrator may waive this requirement.
(4) Assurance of the availability to the State of
laboratory facilities certified by the Administrator
and capable of performing analytical measure-
ments of all contaminants specified in the State
primary drinking water regulations. Until such
time as the Agency establishes a National quality
assurance program for laboratory certification the
Administrator will approve such State laboratories
on an interim basis.
(5) The establishment and maintenance of an
activity to assure that the design and construction
of new or substantially modified public water sys-
tem facilities will be capable of compliance with
the State primary drinking water regulations.
(6) Statutory or regulatory enforcement author-
ity adequate to compel compliance with the State
primary drinking water regulations in appropriate
cases, such authority to include:
(i) Authority to apply State primary drinking
water regulations to all public water systems in the
State covered by the national primary drinking
-------
§142.11
water regulations, except for interstate carrier con-
veyances and systems on Indian land with respect
to which the State does not have the necessary ju-
risdiction or its jurisdiction is in question.
(ii) Authority to sue in courts of competent ju-
risdiction to enjoin any threatened or continuing
violation of the State primary drinking water regu-
lations.
(iii) Right of entry and inspection of public
water systems, including the right to take water
samples, whether or not the State has evidence
that the system is in violation of an applicable
legal requirement.
(iv) Authority to require suppliers of water to
keep appropriate records and make appropriate re-
ports to the State.
(v) Authority to require public water systems to
give public notice that is no less stringent than the
EPA requirements in §§ 141.32 and 142.16(a).
(vi) Authority to assess civil or criminal pen-
alties for violation of the State's primary drinking
water regulations and public notification require-
ments, including the authority to assess daily pen-
alties or multiple penalties when a violation con-
tinues;
(c) Has established and will maintain record
keeping and reporting of its activities under para-
graphs (a), (b) and (d) in compliance with
§§142.14 and 142.15;
(d) If it permits variances or exemptions, or
both, from the requirements of the State primary
drinking water regulations, it shall do so under
conditions and in a manner no less stringent than
the requirements under sections 1415 and 1416 of
the Act. In granting variances, the State must
adopt the Administrator's findings of best avail-
able technology, treatment techniques, or other
means available as specified in subpart G of this
part. (States with primary enforcement responsibil-
ity may adopt procedures different from those set
forth in subparts E and F of this part, which apply
to the issuance of variances and exemptions by the
Administrator in States that do not have primary
enforcement responsibility, provided, that the State
procedures meet the requirements of this para-
graph); and
(e) Has adopted and can implement an adequate
plan for the provision of safe drinking water under
emergency circumstances.
(f) An Indian Tribe shall not be required to ex-
ercise criminal enforcement jurisdiction to meet
the requirements for primary enforcement respon-
sibility.
[41 FR 2918, Jan. 20, 1976, as amended at 43 FR 5373,
Feb. 8, 1978; 52 FR 20675, June 2, 1987; 52 FR 41550,
Oct. 28, 1987; 53 FR 37410, Sept. 26, 1988; 54 FR
15188, Apr. 17, 1989; 54 FR 52138, Dec. 20, 1989]
§142.11 Initial determination of pri-
mary enforcement responsibility.
(a) A State may apply to the Administrator for
a determination that the State has primary enforce-
ment responsibility for public water systems in the
State pursuant to section 1413 of the Act. The ap-
plication shall be as concise as possible and in-
clude a side-by-side comparison of the Federal re-
quirements and the corresponding State authorities,
including citations to the specific statutes and ad-
ministrative regulations or ordinances and, wher-
ever appropriate, judicial decisions which dem-
onstrate adequate authority to meet the require-
ments of § 142.10. The following information is to
be included with the State application.
(1) The text of the State's primary drinking
water regulations, with references to those State
regulations that vary from comparable regulations
set forth in part 141 of this chapter, and a dem-
onstration that any different State regulation is at
least as stringent as the comparable regulation
contained in part 141.
(2) A description, accompanied by appropriate
documentation, of the State's procedures for the
enforcement of the State primary drinking water
regulations. The submission shall include:
(i) A brief description of the State's program to
maintain a current inventory of public water sys-
tems.
(ii) A brief description of the State's program
for conducting sanitary surveys, including an ex-
planation of the priorities given to various classes
of public water systems.
(iii) A brief description of the State's laboratory
approval or certification program, including the
name(s) of the responsible State laboratory
officer(s) certified by the Administrator.
(iv) Identification of laboratory facilities, avail-
able to the State, certified or approved by the Ad-
ministrator and capable of performing analytical
measurements of all contaminants specified in the
State's primary drinking water regulations.
(v) A brief description of the State's program
activity to assure that the design and construction
of new or substantially modified public water sys-
tem facilities will be capable of compliance with
the requirements of the State primary drinking
water regulations.
(vi) Copies of State statutory and regulatory
provisions authorizing the adoption and enforce-
ment of State primary drinking water regulations,
and a brief description of State procedures for ad-
ministrative or judicial action with respect to pub-
lic water systems not in compliance with such reg-
ulations.
(3) A statement that the State will make such
reports and will keep such records as may be re-
quired pursuant to §§ 142.14 and 142.15.
-------
§142.12
(4) If the State permits variances or exemptions
from its primary drinking water regulations, the
text of the State's statutory and regulatory provi-
sions concerning variances and exemptions.
(5) A brief description of the State's plan for
the provision of safe drinking water under emer-
gency conditions. NOTE: In satisfaction of this re-
quirement, for public water supplies from ground-
water sources, EPA will accept the contingency
plan for providing alternate drinking water sup-
plies that is part of a State's Wellhead Protection
Program, where such program has been approved
by EPA pursuant to section 1428 of the SOW A.
(6)(i) A statement by the State Attorney General
(or the attorney for the State primacy agency if it
has independent legal counsel) or the attorney rep-
resenting the Indian tribe that certifies that the
laws and regulations adopted by the State or tribal
ordinances to carry out the program were duly
adopted and are enforceable. State statutes and
regulations cited by the State Attorney General
and tribal ordinances cited by the attorney rep-
resenting the Indian tribe shall be in the form of
lawfully adopted State statutes and regulations or
tribal ordinances at the time the certification is
made and shall be fully effective by the time the
program is approved by EPA. To qualify as
"independent legal counsel," the attorney signing
the statement required by this section shall have
full authority to independently represent the State
primacy agency or Indian tribe in court on all mat-
ters pertaining to the State or tribal program.
(ii) After EPA has received the documents re-
quired under paragraph (a) of this section, EPA
may selectively require supplemental statements
by the State Attorney General (or the attorney for
the State primacy agency if it has independent
legal counsel) or the attorney representing the In-
dian tribe. Each supplemental statement shall ad-
dress all issues concerning the adequacy of State
authorities to meet the requirements of §142.10
that have been identified by EPA after thorough
examination as unresolved by the documents sub-
mitted under paragraph (a) of this section.
(b) (1) The administrator shall act on an appli-
cation submitted pursuant to §142.11 within 90
days after receiving such application, and shall
promptly inform the State in writing of this action.
If he denies the application, his written notification
to the State shall include a statement of reasons
for the denial.
(2) A final determination by the Administrator
that a State has met or has not met the require-
ments for primary enforcement responsibility shall
take effect in accordance with the public notice re-
quirements and related procedures under §142.13.
(3) When the Administrator's determination be-
comes effective pursuant to § 142.13, it shall con-
tinue in effect unless terminated pursuant to
§142.17.
[41 FR 2918, Jan. 20, 1976, as amended at 54 FR 52138,
Dec. 20, 1989; 60 FR 33661, June 28, 1995]
EFFECTIVE DATE NOTE: At 60 FR 33661, June 28,
1995, § 142.11 was amended by revising paragraph (b)(2),
effective July 28, 1995. For the convenience of the user
the superseded text appears as follows:
§142.11 Initial determination of primary en
forcement responsibility.
(b) * * *
(2) A determination by the Administrator that a State
has met the requirements for primary enforcement respon-
sibility shall take effect in accordance with § 142.13.
§ 142.12 Revision of State programs.
(a) General requirements. Either EPA or the
primacy State may initiate actions that require the
State to revise its approved State primacy pro-
gram. To retain primary enforcement responsibil-
ity, States must adopt all new and revised national
primary drinking water regulations promulgated in
part 141 of this chapter and any other require-
ments specified in this part.
(1) Whenever a State revises its approved pri-
macy program to adopt new or revised Federal
regulations, the State must submit a request to the
Administrator for approval of the program revi-
sion, using the procedures described in paragraphs
(b), (c), and (d) of this section. The Administrator
shall approve or disapprove each State request for
approval of a program revision based on the re-
quirements of the Safe Drinking Water Act and of
this part.
(2) For all State program revisions not covered
under § 142.12(a)(l), the review procedures out-
lined in § 142.17(a) shall apply.
(b) Timing of State requests for approval of
program revisions to adopt new or revised Fed-
eral regulations. (1) Complete and final State re-
quests for approval of program revisions to adopt
new or revised EPA regulations must be submitted
to the Administrator within 18 months after pro-
mulgation of the new or revised EPA regulations,
unless the State requests an extension and the Ad-
ministrator has approved the request pursuant to
paragraph (b)(2) of this section. If the State ex-
pects to submit a final State request for approval
of a program revision to EPA more than 18
months after promulgation of the new or revised
EPA regulations, the State shall request an exten-
sion of the deadline before the expiration of the
18-month period.
-------
§142.12
(2) The final date for submission of a complete
and final State request for a program revision may
be extended by EPA for up to a two-year period
upon a written application by the State to the Ad-
ministrator. In the extension application the State
must demonstrate it is requesting the extension be-
cause it cannot meet the original deadline for rea-
sons beyond its control despite a good faith effort
to do so. The application must include a schedule
for the submission of a final request by a certain
time and provide sufficient information to dem-
onstrate that the State:
(i)(A) Currently lacks the legislative or regu-
latory authority to enforce the new or revised re-
quirements, or
(B) Currently lacks the program capability ade-
quate to implement the new or revised require-
ments; or
(C) Is requesting the extension to group two or
more program revisions in a single legislative or
regulatory action; and
(ii) Is implementing the EPA requirements to be
adopted by the State in its program revision pursu-
ant to paragraph (b)(3) of this section within the
scope of its current authority and capabilities.
(3) To be granted an extension, the State must
agree with EPA to meet certain requirements dur-
ing the extension period, which may include the
following types of activities as determined appro-
priate by the Administrator on a case-by-case
basis:
(i) Informing public water systems of the new
EPA (and upcoming State) requirements and that
EPA will be overseeing implementation of the re-
quirements until EPA approves the State program
revision;
(ii) Collecting, storing and managing laboratory
results, public notices, and other compliance and
operation data required by the EPA regulations;
(iii) Assisting EPA in the development of the
technical aspects of enforcement actions and con-
ducting informal follow-up on violations (tele-
phone calls, letters, etc.);
(iv) Providing technical assistance to public
water systems;
(v) Providing EPA with all information pre-
scribed by § 142.15 of this part on State reporting;
and
(vi) For States whose request for an extension
is based on a current lack of program capability
adequate to implement the new requirements, tak-
ing steps agreed to by EPA and the State during
the extension period to remedy the deficiency.
(c) Contents of a State request for approval of
a program revision. (1) The State request for EPA
approval of a program revision shall be concise
and must include:
(i) The documentation necessary (pursuant to
§142.11 (a)) to update the approved State primacy
program, and identification of those elements of
the approved State primacy program that have not
changed because of the program revision. The
documentation shall include a side-by-side com-
parison of the Federal requirements and the cor-
responding State authorities, including citations to
the specific statutes and administrative regulations
or ordinances and, wherever appropriate, judicial
decisions which demonstrate adequate authority to
meet the requirements of § 142.10 as they apply to
the program revision.
(ii) Any additional materials that are listed in
§ 142.16 of this part for a specific EPA regulation,
as appropriate; and
(iii) For a complete and final State request only,
unless one of the conditions listed in paragraph
(c)(2) of this section are met, a statement by the
State Attorney General (or the attorney for the
State primacy agency if it has independent legal
counsel) or the attorney representing the Indian
tribe that certifies that the laws and regulations
adopted by the State or tribal ordinances to carry
out the program revision were duly adopted and
are enforceable. State statutes and regulations cited
by the State Attorney General and tribal ordi-
nances cited by the attorney for the Indian tribe
shall be in the form of lawfully adopted State stat-
utes and regulations or tribal ordinances at the
time the certification is made and shall be fully ef-
fective by the time the request for program revi-
sion is approved by EPA. To qualify as "inde-
pendent legal counsel," the attorney signing the
statement required by this section shall have full
authority to independently represent the State pri-
macy agency or tribe in court on all matters per-
taining to the State or tribal program.
(2) An Attorney General's statement will be re-
quired as part of the State request for EPA ap-
proval of a program revision unless EPA specifi-
cally waives this requirement for a specific regula-
tion at the time EPA promulgates the regulation,
or by later written notice from the Administrator
to the State.
(3) After EPA has received the documents re-
quired under paragraph (c)(l) of this section, EPA
may selectively require supplemental statements
by the State Attorney General (or the attorney for
the State primacy agency if it has independent
legal counsel) or the attorney representing the In-
dian tribe. Each supplemental statement shall ad-
dress all issues concerning the adequacy of State
authorities to meet the requirements of §142.10
that have been identified by EPA after thorough
examination as unresolved by the documents sub-
mitted under paragraph (c)(l) of this section.
(d) Procedures for review of a State request for
approval of a program revision—(1) Preliminary
request, (i) The State may submit to the Adminis-
trator for his or her review a preliminary request
-------
§142.13
for approval of each program revision, containing
the information listed in paragraph (c)(l) of this
section, in draft form. The preliminary request
does not require an Attorney General's statement
in draft form, but does require draft State statutory
or regulatory changes and a side-by-side compari-
son of State authorities with EPA requirements to
demonstrate that the State program revision meets
EPA requirements under § 142.10 of this part. The
preliminary request should be submitted to the Ad-
ministrator as soon as practicable after the promul-
gation of the EPA regulations.
(ii) The Administrator will review the prelimi-
nary request submitted in accordance with para-
graph (d)(l)(i) of this section and make a tentative
determination on the request. The Administrator
will send the tentative determination and other
comments or suggestions to the State for its use
in developing the State's final request under para-
graph (d)(2) of this section.
(2) Final request. The State must submit a com-
plete and final request for approval of a program
revision to the Administrator for his or her review
and approval. The request must contain the infor-
mation listed in paragraph (c)(l) of this section in
complete and final form, in accordance with any
tentative determination EPA may have issued.
Complete and final State requests for program re-
visions shall be submitted within 18 months of the
promulgation of the new or revised EPA regula-
tions, as specified in paragraph (b) of this section.
(3) EPA's determination on a complete and
final request, (i) The Administrator shall act on a
State's request for approval of a program revision
within 90 days after determining that the State re-
quest is complete and final and shall promptly no-
tify the State of his/her determination.
(ii) If the Administrator disapproves a final re-
quest for approval of a program revision, the Ad-
ministrator will notify the State in writing. Such
notification will include a statement of the reasons
for disapproval.
(iii) A final determination by the Administrator
on a State's request for approval of a program re-
vision shall take effect in accordance with the
public notice requirements and related procedures
under §142.13.
[54 FR 52138, Dec. 20, 1989]
§142.13 Public hearing.
(a) The Administrator shall provide an oppor-
tunity for a public hearing before a final deter-
mination pursuant to § 142.11 that the State meets
or does not meet the requirements for obtaining
primary enforcement responsibility, or a final de-
termination pursuant to § 142.12(d)(3) to approve
or disapprove a State request for approval of a
program revision, or a final determination pursuant
to §142.17 that a State no longer meets the re-
quirements for primary enforcement responsibility.
(b) The Administrator shall publish notice of
any determination specified in paragraph (a) of
this section in the FEDERAL REGISTER and in a
newspaper or newspapers of general circulation in
the State involved within 15 days after making
such determination, with a statement of his reasons
for the determination. Such notice shall inform in-
terested persons that they may request a public
hearing on the Administrator's determination.
Such notice shall also indicate one or more loca-
tions in the State where information submitted by
the State pursuant to §142.11 is available for in-
spection by the general public. A public hearing
may be requested by any interested person other
than a Federal agency. Frivolous or insubstantial
requests for hearing may be denied by the Admin-
istrator.
(c) Requests for hearing submitted pursuant to
paragraph (b) of this section shall be submitted to
the Administrator within 30 days after publication
of notice of opportunity for hearing in the FED-
ERAL REGISTER. Such requests shall include the
following information:
(1) The name, address and telephone number of
the individual, organization or other entity request-
ing a hearing.
(2) A brief statement of the requesting person's
interest in the Administrator's determination and
of information that the requesting person intends
to submit at such hearing.
(3) The signature of the individual making the
request; or, if the request is made on behalf of an
organization or other entity, the signature of a re-
sponsible official of the organization or other en-
tity.
(d) The Administrator shall give notice in the
FEDERAL REGISTER and in a newspaper or news-
papers of general circulation in the State involved
of any hearing to be held pursuant to a request
submitted by an interested person or on his own
motion. Notice of the hearing shall also be sent to
the person requesting a hearing, if any, and to the
State involved. Notice of the hearing shall include
a statement of the purpose of the hearing, informa-
tion regarding the time and location or locations
for the hearing and the address and telephone
number of an office at which interested persons
may obtain further information concerning the
hearing. At least one hearing location specified in
the public notice shall be within the involved
State. Notice of hearing shall be given not less
than 15 days prior to the time scheduled for the
hearing.
(e) Hearings convened pursuant to paragraph (d)
of this section shall be conducted before a hearing
officer to be designated by the Administrator. The
hearing shall be conducted by the hearing officer
-------
§142.14
in an informal, orderly and expeditious manner.
The hearing officer shall have authority to call
witnesses, receive oral and written testimony and
take such other action as may be necessary to as-
sure the fair and efficient conduct of the hearing.
Following the conclusion of the hearing, the hear-
ing officer shall forward the record of the hearing
to the Administrator.
(f) After reviewing the record of the hearing,
the Administrator shall issue an order affirming
the determination referred to in paragraph (a) of
this section or rescinding such determination. If
the determination is affirmed, it shall become ef-
fective as of the date of the Administrator's order.
(g) If no timely request for hearing is received
and the Administrator does not determine to hold
a hearing on his own motion, the Administrator's
determination shall become effective 30 days after
notice is issued pursuant to paragraph (b) of this
section.
(h) If a determination of the Administrator that
a State no longer meets the requirements for pri-
mary enforcement responsibility becomes effec-
tive, the State may subsequently apply for a deter-
mination that it meets such requirements by sub-
mitting to the Administrator information dem-
onstrating that it has remedied the deficiencies
found by the Administrator without adversely sac-
rificing other aspects of its program required for
primary enforcement responsibility.
[41 FR 2918, Jan. 20, 1976, as amended at 54 FR 52140,
Dec. 20, 1989; 60 FR 33661, June 28, 1995]
EFFECTIVE DATE NOTE: At 60 FR 33661, June 28,
1995, §142.13 was amended by inserting the word
"final" before the word "determination" in each of the
three places where is occurs in paragraph (a), effective
July 28, 1995.
§ 142.14 Records kept by States.
(a) Each State which has primary enforcement
responsibility shall maintain records of tests,
measurements, analyses, decisions, and determina-
tions performed on each public water system to
determine compliance with applicable provisions
of State primary drinking water regulations.
(1) Records of microbiological analyses shall be
retained for not less than 1 year. Actual laboratory
reports may be kept or data may be transferred to
tabular summaries, provided that the information
retained includes:
(i) The analytical method used;
(ii) The number of samples analyzed each
month;
(iii) The analytical results, set forth in a form
which makes possible comparison with the limits
specified in §§141.63, 141.71, and 141.72 of this
chapter.
(2) Records of microbiological analyses of re-
peat or special samples shall be retained for not
less than one year in the form of actual laboratory
reports or in an appropriate summary form.
(3) Records of turbidity measurements shall be
kept for not less than one year. The information
retained must be set forth in a form which makes
possible comparison with the limits specified in
§§141.71 and 141.73 of this chapter. Until June
29, 1993, for any public water system which is
providing filtration treatment and until December
30, 1991, for any public water system not provid-
ing filtration treatment and not required by the
State to provide filtration treatment, records kept
must be set forth in a form which makes possible
comparison with the limits contained in §141.13.
(i) Date and place of sampling.
(ii) Date and results of analyses.
(4)(i) Records of disinfectant residual measure-
ments and other parameters necessary to document
disinfection effectiveness in accordance with
§§141.72 and 141.74 of this chapter and the re-
porting requirements of § 141.75 of this chapter
shall be kept for not less than one year.
(ii) Records of decisions made on a system-by-
system and case-by-case basis under provisions of
part 141, subpart H, shall be made in writing and
kept at the State.
(A) Records of decisions made under the fol-
lowing provisions shall be kept for 40 years (or
until one year after the decision is reversed or re-
vised) and a copy of the decision must be pro-
vided to the system:
(7) Section 141.73(a)(l)—Any decision to allow
a public water system using conventional filtration
treatment or direct filtration to substitute a turbid-
ity limit greater than 0.5 NTU;
(2) Section 141.73(b)(l)—Any decision to allow
a public water system using slow sand filtration to
substitute a turbidity limit greater than 1 NTU;
(3) Section 141.74(b)(2)—Any decision to allow
an unfiltered public water system to use continu-
ous turbidity monitoring;
(4) Section 141.74(b)(6)(i)—Any decision to
allow an unfiltered public water system to sample
residual disinfectant concentration at alternate lo-
cations if it also has ground water source(s);
(5) Section 141.74(c)(l)—Any decision to allow
a public water system using filtration treatment to
use continuous turbidity monitoring; or a public
water system using slow sand filtration or filtra-
tion treatment other than conventional treatment,
direct filtration or diatomaceous earth filtration to
reduce turbidity sampling to once per day; or for
systems serving 500 people or fewer to reduce tur-
bidity sampling to once per day;
(6) Section 141.74(c)(3)(i)—Any decision to
allow a filtered public water system to sample dis-
infectant residual concentration at alternate loca-
tions if it also has ground water source(s);
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§142.14
(7) Section 141.75(a)(2)(ix)—Any decision to
allow reduced reporting by an unfiltered public
water system; and
(8) Section 141.75(b)(2)(iv)—Any decision to
allow reduced reporting by a filtered public water
system.
(B) Records of decisions made under the fol-
lowing provisions shall be kept for one year after
the decision is made:
(7) Section 141.71(b)(l)(i)—Any decision that a
violation of monthly CT compliance requirements
was caused by circumstances that were unusual
and unpredictable.
(2) Section 141.71(b)(l)(iv)—Any decision that
a violation of the disinfection effectiveness criteria
was not caused by a deficiency in treatment of the
source water;
(3) Section 141.71(b)(5)—Any decision that a
violation of the total coliform MCL was not
caused by a deficiency in treatment of the source
water;
(4) Section 141.74(b)(l)—Any decision that
total coliform monitoring otherwise required be-
cause the turbidity of the source water exceeds 1
NTU is not feasible, except that if such decision
allows a system to avoid monitoring without re-
ceiving State approval in each instance, records of
the decision shall be kept until one year after the
decision is rescinded or revised.
(C) Records of decisions made under the fol-
lowing provisions shall be kept for the specified
period or 40 years, whichever is less.
(1) Section 141.71(a)(2)(i)—Any decision that
an event in which the source water turbidity which
exceeded 5 NTU for an unfiltered public water
system was unusual and unpredictable shall be
kept for 10 years.
(2) Section 141.71(b)(l)(iii)—Any decision by
the State that failure to meet the disinfectant resid-
ual concentration requirements of § 141.72(a)(3)(i)
was caused by circumstances that were unusual
and unpredictable, shall be kept unless filtration is
installed. A copy of the decision must be provided
to the system.
(3) Section 141.71(b)(2)—Any decision that a
public water system's watershed control program
meets the requirements of this section shall be
kept until the next decision is available and filed.
(¥) Section 141.70(c)—Any decision that an in-
dividual is a qualified operator for a public water
system using a surface water source or a ground
water source under the direct influence of surface
water shall be maintained until the qualification is
withdrawn. The State may keep this information in
the form of a list which is updated periodically. If
such qualified operators are classified by category,
the decision shall include that classification.
(5) Section 141.71(b)(3)—Any decision that a
party other than the State is approved by the State
to conduct on-site inspections shall be maintained
until withdrawn. The State may keep this informa-
tion in the form of a list which is updated periodi-
cally.
(6) Section 141.71(b)(4)—Any decision that an
unfiltered public water system has been identified
as the source of a waterborne disease outbreak,
and, if applicable, that it has been modified suffi-
ciently to prevent another such occurrence shall be
kept until filtration treatment is installed. A copy
of the decision must be provided to the system.
(7) Section 141.72—Any decision that certain
interim disinfection requirements are necessary for
an unfiltered public water system for which the
State has determined that filtration is necessary,
and a list of those requirements, shall be kept until
filtration treatment is installed. A copy of the re-
quirements must be provided to the system.
(8) Section 141.72(a)(2)(ii)—Any decision that
automatic shut-off of delivery of water to the dis-
tribution system of an unfiltered public water sys-
tem would cause an unreasonable risk to health or
interfere with fire protection shall be kept until re-
scinded.
(9) Section 141.72(a)(4)(ii)—Any decision by
the State, based on site-specific considerations,
that an unfiltered system has no means for having
a sample transported and analyzed for HPC by a
certified laboratory under the requisite time and
temperature conditions specified by § 141.74(a)(3)
and that the system is providing adequate disinfec-
tion in the distribution system, so that the disinfec-
tion requirements contained in § 141.72(a)(4)(i) do
not apply, and the basis for the decision, shall be
kept until the decision is reversed or revised. A
copy of the decision must be provided to the sys-
tem.
(70) Section 141.72(b)(3)(ii)—Any decision by
the State, based on site-specific conditions, that a
filtered system has no means for having a sample
transported and analyzed for HPC by a certified
laboratory under the requisite time and tempera-
ture conditions specified by § 141.74(a)(3) and that
the system is providing adequate disinfection in
the distribution system, so that the disinfection re-
quirements contained in § 141.72(b)(3)(i) do not
apply, and the basis for the decision, shall be kept
until the decision is reversed or revised. A copy
of the decision must be provided to the system.
(77) Section 141.73(d)—Any decision that a
public water system, having demonstrated to the
State that an alternative filtration technology, in
combination with disinfection treatment, consist-
ently achieves 99.9 percent removal and/or inac-
tivation of Giardia lamblia cysts and 99.99 per-
cent removal and/or inactivation of viruses, may
use such alternative filtration technology, shall be
kept until the decision is reversed or revised. A
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§142.14
copy of the decision must be provided to the sys-
tem.
(12) Section 141.74(b), Table 3.1—Any deci-
sion that a system using either preformed
chloramines or chloramines formed by the addition
of ammonia prior to the addition of chlorine has
demonstrated that 99.99 percent removal —nd/or
inactivation of viruses has been achieved at par-
ticular CT values, and a list of those values, shall
be kept until the decision is reversed or revised.
A copy of the list of required values must be pro-
vided to the system.
(13) Section 141.74(b)(3)(v)—Any decision that
a system using a disinfectant other than chlorine
may use CTgg 9 values other than those in Tables
2.1 or 3.1 and/or other operational parameters to
determine if the minimum total inactivation rates
required by § 141.72(a)(l) are being met, and what
those values or parameters are, shall be kept until
the decision is reversed or revised. A copy of the
list of required values or parameters must be pro-
vided to the system.
(14) Section 142.16(b)(2)(i)(B)—Any decision
that a system using a ground water source is under
the direct influence of surface water.
(iii) Records of any determination that a public
water system supplied by a surface water source
or a ground water source under the direct influ-
ence of surface water is not required to provide
filtration treatment shall be kept for 40 years or
until withdrawn, whichever is earlier. A copy of
the determination must be provided to the system.
(5) Records of each of the following decisions
made pursuant to the total coliform provisions of
part 141 shall be made in writing and retained by
the State.
(i) Records of the following decisions must be
retained for 5 years.
(A) Section 141.21(b)(l)—Any decision to
waive the 24-hour time limit for collecting repeat
samples after a total coliform-positive routine sam-
ple if the public water system has a logistical
problem in collecting the repeat sample that is be-
yond the system's control, and what alternative
time limit the system must meet.
(B) Section 141.21(b)(5)—Any decision to
allow a system to waive the requirement for five
routine samples the month following a total coli-
form-positive sample. If the waiver decision is
made as provided in § 141.21(b)(5), the record of
the decision must contain all the items listed in
that paragraph.
(C) Section 141.21(c)—Any decision to invali-
date a total coliform-positive sample. If the deci-
sion to invalidate a total coliform-positive sample
as provided in § 141.21(c)(l)(iii) is made, the
record of the decision must contain all the items
listed in that paragraph.
(ii) Records of each of the following decisions
must be retained in such a manner so that each
system's current status may be determined.
(A) Section 141.21(a)(2)—Any decision to re-
duce the total coliform monitoring frequency for a
community water system serving 1,000 persons or
fewer, that has no history of total coliform con-
tamination in its current configuration and had a
sanitary survey conducted within the past five
years showing that the system is supplied solely
by a protected groundwater source and is free of
sanitary defects, to less than once per month, as
provided in § 141.21(a)(2); and what the reduced
monitoring frequency is. A copy of the reduced
monitoring frequency must be provided to the sys-
tem.
(B) Section 141.21(a)(3)(i)—Any decision to re-
duce the total coliform monitoring frequency for a
non-community water system using only ground
water and serving 1,000 persons or fewer to less
than once per quarter, as provided in
§ 141.21(a)(3)(i), and what the reduced monitoring
frequency is. A copy of the reduced monitoring
frequency must be provided to the system.
(C) Section 141.21(a)(3)(ii)—Any decision to
reduce the total coliform monitoring frequency for
a non-community water system using only ground
water and serving more than 1,000 persons during
any month the system serves 1,000 persons or
fewer, as provided in § 141.21(a)(3)(ii). A copy of
the reduced monitoring frequency must be pro-
vided to the system.
(D) Section 141.21(a)(5)—Any decision to
waive the 24-hour limit for taking a total coliform
sample for a public water system which uses sur-
face water, or ground water under the direct influ-
ence of surface water, and which does not practice
filtration in accordance with part 141, subpart H,
and which measures a source water turbidity level
exceeding 1 NTU near the first service connection
as provided in § 141.21(a)(5).
(E) Section 141.21(d)(l)—Any decision that a
non-community water system is using only pro-
tected and disinfected ground water and therefore
may reduce the frequency of its sanitary survey to
less than once every five years, as provided in
§ 141.21(d), and what that frequency is. A copy of
the reduced frequency must be provided to the
system.
(F) Section 141.21(d)(2)—A list of agents other
than the State, if any, approved by the State to
conduct sanitary surveys.
(G) Section 141.21(e)(2)—Any decision to
allow a public water system to forgo fecal coli-
form or E. coli testing on a total coliform-positive
sample if that system assumes that the total coli-
form-positive sample is fecal coliform-positive or
E. cofc-positive, as provided in § 141.21(e)(2).
10
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§142.14
(6) Records of analysis for other than
microbiological contaminants (including total coli-
form, fecal coliform, and heterotrophic plate
count), residual disinfectant concentration, other
parameters necessary to determine disinfection ef-
fectiveness (including temperature and pH meas-
urements), and turbidity shall be retained for not
less than 12 years and shall include at least the
following information:
(i) Date and place of sampling.
(ii) Date and results of analyses.
(b) Records required to be kept pursuant to
paragraph (a) of this sec-
tion must be in a form admissible as evidence in
State enforcement proceedings.
(c) Each State which has primary enforcement
responsibility shall maintain current inventory in-
formation for every public water system in the
State and shall retain inventory records of public
water systems for not less than 12 years.
(d) Each State which has primary enforcement
responsibility shall retain, for not less than 12
years, files which shall include for each such pub-
lic water system in the State:
(1) Reports of sanitary surveys;
(2) Records of any State approvals;
(3) Records of any enforcement actions.
(4) A record of the most recent vulnerability de-
termination, including the monitoring results and
other data supporting the determination, the State's
findings based on the supporting data and any ad-
ditional bases for such determination; except that
it shall be kept in perpetuity or until a more cur-
rent vulnerability determination has been issued.
(5) A record of all current monitoring require-
ments and the most recent monitoring frequency
decision pertaining to each contaminant, including
the monitoring results and other data supporting
the decision, the State's findings based on the sup-
porting data and any additional bases for such de-
cision; except that the record shall be kept in per-
petuity or until a more recent monitoring fre-
quency decision has been issued.
(6) A record of the most recent asbestos repeat
monitoring determination, including the monitor-
ing results and other data supporting the deter-
mination, the State's findings based on the sup-
porting data and any additional bases for the deter-
mination and the repeat monitoring frequency; ex-
cept that these records shall be maintained in per-
petuity or until a more current repeat monitoring
determination has been issued.
(7) Records of annual certifications received
from systems pursuant to part 141, subpart K dem-
onstrating the system's compliance with the treat-
ment techniques for acrylamide and/or
epichlorohydrin in §14.111.
(8) Records of the currently applicable or most
recent State determinations, including all support-
ing information and an explanation of the tech-
nical basis for each decision, made under the fol-
lowing provisions of 40 CFR, part 141, subpart I
for the control of lead and copper:
(i) Section 141.82(b)—decisions to require a
water system to conduct corrosion control treat-
ment studies;
(ii) Section 141.82(d)—designations of optimal
corrosion control treatment;
(iii) Section 141.82(f)—designations of optimal
water quality parameters;
(iv) Section 141.82(h)—decisions to modify a
public water system's optimal corrosion control
treatment or water quality parameters;
(v) Section 141.83(b)(2)—determinations of
source water treatment; and
(vi) Section 141.83(b)(4)—designations of max-
imum permissible lead and copper concentrations
in source water.
(vii) Section 141.84(e)—determinations that a
system does not control entire lead service lines.
(viii) Section 141.84(f)—determinations estab-
lishing a shorter lead service line replacement
schedule than required by § 141.84.
(9) Records of reports and any other informa-
tion submitted by PWSs under § 141.90;
(10) Records of state activities, and the results
thereof, to verify compliance with State determina-
tions issued under §§ 141.82(f), 141.82(h),
141.83(b)(2), and 141.83(b)(4) and compliance
with lead service line replacement schedules under
§141.84.
(11) Records of each system's currently applica-
ble or most recently designated monitoring re-
quirements. If, for the records identified in
§§142.14(d)(8)(i) through 142.14(d)(8)(viii)
above, no change is made to State decision during
a 12 year retention period, the State shall maintain
the record until a new decision, determination or
designation has been issued.
(e) Each State which has primary enforcement
responsibility shall retain records pertaining to
each variance and exemption granted by it for a
period of not less than 5 years following the expi-
ration of such variance or exemption.
(f) Records required to be kept under this sec-
tion shall be available to the Regional Adminis-
trator upon request. The records required to be
kept under this section shall be maintained and
made available for public inspection by the State,
or, the State at its option may require suppliers of
water to make available for public inspection those
records maintained in accordance with § 141.33.
[41 FR 2918, Jan. 20, 1976, as amended at 54 FR 27537,
June 29, 1989; 55 FR 25065, June 19, 1990; 56 FR 3595,
Jan. 30, 1991; 56 FR 26562, June 7, 1991]
11
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§142.15
§ 142.15 Reports by States.
Each State which has primary enforcement re-
sponsibility shall submit to the Administrator the
following information:
(a) Each State which has primary enforcement
responsibility shall submit quarterly reports to the
Administrator on a schedule and in a format pre-
scribed by the Administrator, consisting of the fol-
lowing information:
(1) New violations by public water systems in
the State during the previous quarter of State regu-
lations adopted to incorporate the requirements of
national primary drinking water regulations;
(2) New enforcement actions taken by the State
during the previous quarter against public water
systems with respect to State regulations adopted
to incorporate the requirements of national primary
drinking water regulations;
(3) Notification of any new variance or exemp-
tion granted during the previous quarter. The no-
tice shall include a statement of reasons for the
granting of the variance or exemption, including
documentation of the need for the variance or ex-
emption and the finding that the granting of the
variance or exemption will not result in an unrea-
sonable risk to health. The State may use a single
notification statement to report two or more simi-
lar variances or exemptions.
(b) Each State which has primary enforcement
responsibility shall submit annual reports to the
Administrator on a schedule and in a format pre-
scribed by the Administrator, consisting of the fol-
lowing information:
(1) All additions or corrections to the State's in-
ventory of public water systems;
(2) A summary of the status of each variance
and exemption currently in effect.
(c) Special reports. (1) Surface Water Treatment
Rule. (i)(A) A list identifying the name, PWS
identification number and date of the determina-
tion for each public water system supplied by a
surface water source or a ground water source
under the direct influence of surface water, which
the State has determined is not required to provide
filtration treatment.
(B) A list identifying the name and PWS identi-
fication number of each public water system sup-
plied by a surface water source or ground water
source under the direct influence of surface water,
which the State has determined, based on an eval-
uation of site-specific considerations, has no
means of having a sample transported and ana-
lyzed for HPC by a certified laboratory under the
requisite time and temperature conditions specified
in § 141.74(a)(3) and is providing adequate dis-
infection in the distribution system, regardless of
whether the system is in compliance with the cri-
teria of §141.72(a)(4)(i) or (b)(3)(i) of this chap-
ter, as allowed by § 141.72(a)(4)(ii) and (b)(3)(ii).
The list must include the effective date of each de-
termination.
(ii) Notification within 60 days of the end of the
calendar quarter of any determination that a public
water system using a surface water source or a
ground water source under the direct influence of
surface water is not required to provide filtration
treatment. The notification must include a state-
ment describing the system's compliance with
each requirement of the State's regulations that
implement § 141.71 and a summary of comments,
if any, received from the public on the determina-
tion. A single notification may be used to report
two or more such determinations.
(2) Total coliforms. A list of public water sys-
tems which the State is allowing to monitor less
frequently than once per month for community
water systems or less frequently than once per
quarter for non-community water systems as pro-
vided in § 141.21 (a), including the effective date
of the reduced monitoring requirement for each
system.
(3) The results of monitoring for unregulated
contaminants shall be reported quarterly.
(4) States shall report to EPA by May 15, Au-
gust 15, November 15 and February 15 of each
year the following information related to each sys-
tem's compliance with the treatment techniques
for lead and copper under 40 CFR Part 141, Sub-
part I during the preceding calendar quarter. Spe-
cifically, States shall report the name and PWS
identification number of:
(i) Each public water system which exceeded
the lead and copper action levels and the date
upon which the exceedance occurred;
(ii) Each public water system required to com-
plete the corrosion control evaluation specified in
§ 141.82(c) and the date the State received the re-
sults of the evaluations from each system;
(iii) Each public water system for which the
State has designated optimal corrosion control
treatment under §141.82(d), the date of the deter-
mination, and each system that completed installa-
tion of treatment as certified under § 141.90(c)(3);
(iv) Each public water system for which the
State has designated optimal water quality param-
eters under §141.82(f) and the date of the deter-
mination;
(v) Each public water system which the State
has required to install source water treatment
under § 141.83(b)(2), the date of the determination,
and each system that completed installation of
treatment as certified under § 141.90(d)(2);
(vi) Each public water system for which the
State has specified maximum permissible source
water levels under § 141.83(b)(4); and
(vii) Each public water system required to begin
replacing lead service lines as specified in
§141.84, each public water system for which the
12
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§142.16
State has established a replacement schedule under
§141.84(f), and each system reporting compliance
with its replacement schedule under § 141.90(e)(2).
(d) The reports submitted pursuant to this sec-
tion shall be made available by the State to the
public for inspection at one or more locations
within the State.
[41 FR 2918, Jan. 20, 1976, as amended at 43 FR 5373,
Feb. 8, 1978; 54 FR 27539, June 29, 1989; 55 FR 52140,
Dec. 20, 1989; 55 FR 25065, June 19, 1990; 56 FR 3595,
Jan. 30, 1991; 56 FR 26562, June 7, 1991]
§142.16 Special primacy requirements.
(a) State public notification requirements. If a
State exercises the option specified in
§ 141.32(b)(4) to authorize less frequent notice for
minor monitoring violations, it must adopt a pro-
gram revision enforceable under State authorities
which promulgates rules specifying either: (1)
Which monitoring violations are minor and the
frequency of public notification for such viola-
tions; or (2) criteria for determining which mon-
itoring violations are minor and the frequency of
public notification.
(b) Requirements for States to adopt 40 CFR
part 141, subpart H Filtration and Disinfection. In
addition to the general primacy requirements enu-
merated elsewhere in this part, including the re-
quirement that State provisions are no less strin-
gent than the federal requirements, an application
for approval of a State program revision that
adopts 40 CFR part 141, subpart H Filtration and
Disinfection, must contain the information speci-
fied in this paragraph (b), except that States which
require without exception all public water systems
using a surface water source or a ground water
source under the direct influence of surface water
to provide filtration need not demonstrate that the
State program has provisions that apply to systems
which do not provide filtration treatment. How-
ever, such States must provide the text of the State
statutes or regulations which specifies that all pub-
lic water systems using a surface water source or
a ground water source under the direct influence
of surface water must provide filtration.
(1) Enforceable requirements. In addition to
adopting criteria no less stringent than those speci-
fied in part 141, subpart H of this chapter, the
State's application must include enforceable design
and operating criteria for each filtration treatment
technology allowed or a procedure for establishing
design and operating conditions on a system-by-
system basis (e.g., a permit system).
(2) State practices or procedures, (i) A State
application for program revision approval must in-
clude a description of how the State will accom-
plish the following:
(A) Section 141.70(c) (qualification of opera-
tors)—Qualify operators of systems using a sur-
face water source or a ground water source under
the direct influence of surface water.
(B) Determine which systems using a ground
water source are under the direct influence of sur-
face water by June 29, 1994 for community water
systems and by June 29, 1999 for non-community
water systems.
(C) Section 141.72(b)(l) (achieving required
Giardia lamblia and virus removal in filtered sys-
tems)—Determine that the combined treatment
process incorporating disinfection treatment and
filtration treatment will achieve the required re-
moval and/or inactivation of Giardia lamblia and
viruses.
(D) Section 141.74(a) (State approval of parties
to conduct analyses)—approve parties to conduct
pH, temperature, turbidity, and residual disinfect-
ant concentration measurements.
(E) Determine appropriate filtration treatment
technology for source waters of various qualities.
(ii) For a State which does not require all public
water systems using a surface water source or
ground water source under the direct influence of
surface water to provide filtration treatment, a
State application for program revision approval
must include a description of how the State will
accomplish the following:
(A) Section 141.71(b)(2) (watershed control pro-
gram)—Judge the adequacy of watershed control
programs.
(B) Section 141.71(b)(3) (approval of on-site in-
spectors)—Approve on-site inspectors other than
State personnel and evaluate the results of on-site
inspections.
(iii) For a State which adopts any of the follow-
ing discretionary elements of part 141 of this
chapter, the application must describe how the
State will:
(A) Section 141.72 (interim disinfection require-
ments)—Determine interim disinfection require-
ments for unfiltered systems which the State has
determined must filter which will be in effect until
filtration is installed.
(B) Section 141.72(a)(4)(ii) and (b)(3)(ii) (deter-
mination of adequate disinfection in system with-
out disinfectant residual)—Determine that a sys-
tem is unable to measure HPC but is still provid-
ing adequate disinfection in the distribution sys-
tem, as allowed by § 141.72(a)(4)(ii) for systems
which do not provide filtration treatment and
§ 141.72(b)(3)(ii) for systems which do provide fil-
tration treatment.
(C) Section 141.73(a)(l) and (b)(l) (alternative
turbidity limit)—Determine whether an alternative
turbidity limit is appropriate and what the level
should be as allowed by § 141.73(a)(l) for a sys-
tem using conventional filtration treatment or di-
rect filtration and by § 141.73(b)(l) for a system
using slow sand filtration.
13
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§142.16
(D) Section 141.73(d) (alternative filtration
technologies)—Determine that a public water sys-
tem has demonstrated that an alternate filtration
technology, in combination with disinfection treat-
ment, achieves adequate removal and/or disinfec-
tion of Giardia lamblia and viruses.
(E) Section 141.74(a)(5) (alternate analytical
method for chlorine)—Approve DPD colorimetric
test kits for free and combined chlorine measure-
ment or approve calibration of automated methods
by the Indigo Method for ozone determination.
(F) Section 141.74 (b)(2) and (c)(l) (approval of
continuous turbidity monitoring)—Approve contin-
uous turbidity monitoring, as allowed by
§ 141.74(b)(2) for a public water system which
does not provide filtration treatment and
§ 141.74(c)(l) for a system which does provide fil-
tration treatment.
(G) Section 141.74 (b)(6)(i) and (c)(3)(i) (ap-
proval of alternate disinfectant residual concentra-
tion sampling plans)—Approve alternate disinfect-
ant residual concentration sampling plans for sys-
tems which have a combined ground water and
surface water or ground water and ground water
under the direct influence of a surface water dis-
tribution system, as allowed by § 141.74(b)(6)(i)
for a public water system which does not provide
filtration treatment and § 141.74(c)(3)(i) for a pub-
lic water system which does provide filtration
treatment.
(H) Section 141.74(c)(l) (reduction of turbidity
monitoring)—Decide whether to allow reduction
of turbidity monitoring for systems using slow
sand filtration, an approved alternate filtration
technology or serving 500 people or fewer.
(I) Section 141.75 (a)(2)(ix) and (b)(2)(iv) (re-
duced reporting)—Determine whether reduced re-
porting is appropriate, as allowed by
§ 141.75(a)(2)(ix) for a public water system which
does not provide filtration treatment and
§ 141.75(b)(2)(iv) for a public water system which
does provide filtration treatment.
(iv) For a State which does not require all pub-
lic water systems using a surface water source or
ground water source under the direct influence of
surface water to provide filtration treatment and
which uses any of the following discretionary pro-
visions, the application must describe how the
State will:
(A) Section 141.71(a)(2)(i) (source water turbid-
ity requirements)—Determine that an exceedance
of turbidity limits in source water was caused by
circumstances that were unusual and unpredict-
able.
(B) Section 141.71(b)(l)(i) (monthly CT com-
pliance requirements)—Determine whether failure
to meet the requirements for monthly CT compli-
ance in § 141.72(a)(l) was caused by cir-
cumstances that were unusual and unpredictable.
(C) Section 141.71(b)(l)(iii) (residual disinfect-
ant concentration requirements)—Determine
whether failure to meet the requirements for resid-
ual disinfectant concentration entering the distribu-
tion system in § 141.72(a)(3)(i) was caused by cir-
cumstances that were unusual and unpredictable.
(D) Section 141.71(b)(l)(iv) (distribution system
disinfectant residual concentration requirements)—
Determine whether failure to meet the require-
ments for distribution system residual disinfectant
concentration in § 141.72(a)(4) was related to a de-
ficiency in treatment.
(E) Section 141.71(b)(4) (system modification
to prevent waterborne disease outbreak)—Deter-
mine that a system, after having been identified as
the source of a waterborne disease outbreak, has
been modified sufficiently to prevent another such
occurrence.
(F) Section 141.71(b)(5) (total coliform
MCL)—Determine whether a total coliform MCL
violation was caused by a deficiency in treatment.
(G) Section 141.72(a)(l) (disinfection require-
ments)—Determine that different ozone, chlor-
amine, or chlorine dioxide CTgg 9 values or condi-
tions are adequate to achieve required disinfection.
(H) Section 141.72(a)(2)(ii) (shut-off of water to
distribution system)—Determine whether a shut-
off of water to the distribution system when the
disinfectant residual concentration entering the dis-
tribution system is less than 0.2 mg/1 will cause
an unreasonable risk to health or interfere with fire
protection.
(I) Section 141.74(b)(l) (coliform monitoring)—
Determine that coliform monitoring which other-
wise might be required is not feasible for a sys-
tem.
(J) Section 141.74(b), Table 3.1 (disinfection
with chloramines)—Determine the conditions to be
met to insure 99.99 percent removal and/or inac-
tivation of viruses in systems which use either
preformed chloramines or chloramines for which
ammonia is added to the water before chlorine, as
allowed by Table 3.1.
(c) Total coliform requirements. In addition to
meeting the general primacy requirements of this
part, an application for approval of a State pro-
gram revision that adopts the requirements of the
national primary drinking water regulation for total
coliforms must contain the following information:
(1) The application must describe the State's
plan for determining whether sample siting plans
are acceptable (including periodic reviews), as re-
quired by §141.21(a)(l).
(2) The national primary drinking water regula-
tion for total coliforms in part 141 gives States the
option to impose lesser requirements in certain
circumstances, which are listed below. If a State
chooses to exercise any of these options, its appli-
cation for approval of a program revision must in-
14
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§142.16
elude the information listed below (the State need
only provide the information listed for those op-
tions it has chosen to use).
(i) Section 141.21(a)(2) (Reduced monitoring
requirements for community water systems serving
1,000 or fewer persons)—A description of how the
State will determine whether it is appropriate to
reduce the total coliform monitoring frequency for
such systems using the criteria in § 141.21(a)(2)
and how it will determine the revised frequency.
(ii) Section 141.21(a)(3)(i) (Reduced monitoring
requirements for non-community water systems
using ground water and serving 1,000 persons or
fewer)—A description of how the State will deter-
mine whether it is appropriate to reduce the total
coliform monitoring frequency for such systems
using the criteria in § 141.21(a)(3)(i) and how it
will determine the revised frequency.
(iii) Section 141.21(a)(3)(ii) (Reduced monitor-
ing for non-community water systems using
ground water and serving more than 1,000 per-
sons)—A description of how the State will deter-
mine whether it is appropriate to reduce the total
coliform monitoring frequency for non-community
water systems using only ground water and serv-
ing more than 1,000 persons during any month the
system serves 1,000 persons or fewer and how it
will determine the revised frequency.
(iv) Section 141.21(a)(5) (Waiver of time limit
for sampling after a turbidity sampling result ex-
ceeds 1 NTU)—A description of how the State
will determine whether it is appropriate to waive
the 24-hour time limit.
(v) Section 141.21(b)(l) (Waiver of time limit
for repeat samples)—A description of how the
State will determine whether it is appropriate to
waive the 24-hour time limit and how it will de-
termine what the revised time limit will be.
(vi) Section 141.21(b)(3) (Alternative repeat
monitoring requirements for systems with a single
service connection)—A description of how the
State will determine whether it is appropriate to
allow a system with a single service connection to
use an alternative repeat monitoring scheme, as
provided in § 141.21(b)(3), and what the alter-
native requirements will be.
(vii) Section 141.21(b)(5) (Waiver of require-
ment to take five routine samples the month after
a system has a total coliform-positive sample)—A
description of how the State will determine wheth-
er it is appropriate to waive the requirement for
certain systems to collect five routine samples dur-
ing the next month it serves water to the public,
using the criteria in § 141.21(b)(5).
(viii) Section 141.21(c) (Invalidation of total
coliform-positive samples)—A description of how
the State will determine whether it is appropriate
to invalidate a total coliform-positive sample,
using the criteria in § 141.21(c).
(ix) Section 141.21(d) (Sanitary surveys)—A
description of the State's criteria and procedures
for approving agents other than State personnel to
conduct sanitary surveys.
(x) Section 141.21(e)(2) (Waiver of fecal coli-
form or E. coli testing on a total coliform-positive
sample)—A description of how the State will de-
termine whether it is appropriate to waive fecal
coliform or E. coli testing on a total coliform-posi-
tive sample.
(d) Requirements for States to adopt 40 CFR
part 141, Subpart I—Control of Lead and Copper.
An application for approval of a State program re-
vision which adopts the requirements specified in
40 CFR part 141, subpart I, must contain (in addi-
tion to the general primacy requirements enumer-
ated elsewhere in this part, including the require-
ment that State regulations be at least as stringent
as the federal requirements) a description of how
the State will accomplish the following program
requirements:
(1) Sections 141.82(d), 141.82(f), 141.82(h)—
Designating optimal corrosion control treatment
methods, optimal water quality parameters and
modifications thereto.
(2) Sections 141.83(b)(2) and 141.83(b)(4)—
Designating source water treatment methods, max-
imum permissible source water levels for lead and
copper and modifications thereto.
(3) Section 141.90(e)—Verifying compliance
with lead service line replacement schedules and
of PWS demonstrations of limited control over
lead service lines.
(e) An application for approval of a State pro-
gram revision which adopts the requirements spec-
ified in §§141.11, 141.23, 141.24, 141.32, 141.40,
141.61 and 141.62 must contain the following (in
addition to the general primacy requirements enu-
merated elsewhere in this Part, including the re-
quirement that State regulations be at least as
stringent as the federal requirements):
(1) If a State chooses to issue waivers from the
monitoring requirements in §§141.23, 141.24, and
141.40, the State shall describe the procedures and
criteria which it will use to review waiver applica-
tions and issue waiver determinations.
(i) The procedures for each contaminant or class
of contaminants shall include a description of:
(A) The waiver application requirements;
(B) The State review process for "use" waivers
and for "susceptibility" waivers; and
(C) The State decision criteria, including the
factors that will be considered in deciding to grant
or deny waivers. The decision criteria must in-
clude the factors specified in §§ 141.24(f)(8),
141.24(h)(6), and 141.40(n)(4).
(ii) The State must specify the monitoring data
and other documentation required to demonstrate
15
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§142.17
that the contaminant is eligible for a "use" and/
or "susceptibility" waiver.
(2) A monitoring plan for the initial monitoring
period by which the State will assure all systems
complete the required initial monitoring within the
regulatory deadlines.
NOTE: States may update their monitoring plan submit-
ted under the Phase II Rule or simply note in their appli-
cation that they will use the same monitoring plan for the
Phase V Rule.
(i) The initial monitoring plan must describe
how systems will be scheduled during the initial
monitoring period and demonstrate that the analyt-
ical workload on certified laboratories for each of
the three years has been taken into account, to as-
sure that the State's plan will result in a high de-
gree of monitoring compliance and that as a result
there is a high probability of compliance and will
be updated as necessary.
(ii) The State must demonstrate that the initial
monitoring plan is enforceable under State law.
[54 FR 15188, Apr. 17, 1989, as amended at 54 FR
27539, June 29, 1989; 55 FR 25065, June 19, 1990; 56
FR 3595, Jan. 30, 1991; 56 FR 26563, June 7, 1991; 57
FR 31847, July 17, 1992; 59 FR 33864, June 30, 1994]
§142.17 Review of State programs and
procedures for withdrawal of ap-
proved primacy programs.
(a)(l) At least annually the Administrator shall
review, with respect to each State determined to
have primary enforcement responsibility, the com-
pliance of the State with the requirements set forth
in 40 CFR part 142, subpart B, and the approved
State primacy program. At the time of this review,
the State shall notify the Administrator of any
State-initiated program changes (i.e., changes other
than those to adopt new or revised EPA regula-
tions), and of any transfer of all or part of its pro-
gram from the approved State agency to any other
State agency.
(2) When, on the basis of the Administrator's
review or other available information, the Admin-
istrator determines that a State no longer meets the
requirements set forth in 40 CFR part 142, subpart
B, the Administrator shall initiate proceedings to
withdraw primacy approval. Among the factors the
Administrator intends to consider as relevant to
this determination are the following, where appro-
priate: whether the State has requested and has
been granted, or is awaiting EPA's decision on, an
extension under § 142.12(b)(2) of the deadlines for
meeting those requirements; and whether the State
is taking corrective actions that may have been re-
quired by the Administrator. The Administrator
shall notify the State in writing that EPA is initiat-
ing primacy withdrawal proceedings and shall
summarize in the notice the information available
that indicates that the State no longer meets such
requirements.
(3) The State notified pursuant to paragraph
(a)(2) of this section may, within 30 days of re-
ceiving the Administrator's notice, submit to the
Administrator evidence demonstrating that the
State continues to meet the requirements for pri-
mary enforcement responsibility.
(4) After reviewing the submission of the State,
if any, made pursuant to paragraph (a)(3) of this
section, the Administrator shall make a final deter-
mination either that the State no longer meets the
requirements of 40 CFR part 142, subpart B, or
that the State continues to meet those require-
ments, and shall notify the State of his or her de-
termination. Any final determination that the State
no longer meets the requirements of 40 CFR part
142, subpart B, shall not become effective except
as provided in § 142.13.
(b) If a State which has primary enforcement re-
sponsibility decides to relinquish that authority, it
may do so by notifying the Administrator in writ-
ing of the State's decision at least 90 days before
the effective date of the decision.
[54 FR 52140, Dec. 20, 1989, as amended at 60 FR
33661, June 28, 1995]
EFFECTIVE DATE NOTE: At 60 FR 33661, June 28,
1995, §142.17 was amended by revising the word
"§142.10" in paragraph (a)(l) to read "40 CFR part
142, subpart B," and by revising paragraphs (a)(2) and
(a)(4), effective July 28, 1995. For the convenience of the
user the superseded text appears as follows:
§142.17 Review of State programs and pro
cedures for withdrawal of approved pri-
macy programs.
(a) * * *
(2) When, on the basis of the Administrator's review
or other available information, the Administrator deter-
mines that a State no longer meets the requirements set
forth in §142.10, and the State has failed to request or
has been denied an extension under § 142.12(b)(2) of the
deadlines for meeting those requirements, or has failed to
take other corrective actions required by the Adminis-
trator, the Administrator may initiate proceedings to with-
draw program approval. The Administrator shall notify
the State in writing of EPA's intention to initiate with-
drawal proceedings and shall summarize in the notice the
information available that indicates that the State no
longer meets such requirements.
(4) After reviewing the submission of the State, if any,
made pursuant to paragraph (a)(3) of this section the Ad-
ministrator shall either determine that the State no longer
meets the requirements of § 142.10 or that the State con-
tinues to meet those requirements, and shall notify the
State of his or her determination. Any determination that
16
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§142.19
the State no longer meets the requirements of §142.10
shall not become effective except as provided in § 142.13.
§142.18 EPA review of State monitor-
ing determinations.
(a) A Regional Administrator may annul a State
monitoring determination for the types of deter-
minations identified in §§141.23(b), 141.23(c),
141.24(f), 141.24(h), and 141.40(n) in accordance
with the procedures in paragraph (b) of this sec-
tion.
(b) When information available to a Regional
Administrator, such as the results of an annual re-
view, indicate a State determination fails to apply
the standards of the approved State program, he
may propose to annul the State monitoring deter-
mination by sending the State and the affected
PWS a draft Rescission Order. The draft order
shall:
(1) Identify the PWS, the State determination,
and the provisions at issue;
(2) Explain why the State determination is not
in compliance with the State program and must be
changed; and
(3) Describe the actions and terms of operation
the PWS will be required to implement.
(c) The State and PWS shall have 60 days to
comment on the draft Rescission Order.
(d) The Regional Administrator may not issue a
Rescission Order to impose conditions less strin-
gent than those imposed by the State.
(e) The Regional Administrator shall also pro-
vide an opportunity for comment upon the draft
Rescission Order, by
(1) Publishing a notice in a newspaper in gen-
eral circulation in communities served by the af-
fected system; and
(2) Providing 30 days for public comment on
the draft order.
(f) The State shall demonstrate that the deter-
mination is reasonable, based on its approved State
program.
(g) The Regional Administrator shall decide
within 120 days after issuance of the draft Rescis-
sion Order to:
(1) Issue the Rescission Order as drafted;
(2) Issue a modified Rescission Order; or
(3) Cancel the Rescission Order.
(h) The Regional Administrator shall set forth
the reasons for his decision, including a respon-
siveness summary addressing significant comments
from the State, the PWS and the public.
(i) The Regional Administrator shall send a no-
tice of his final decision to the State, the PWS and
all parties who commented upon the draft Rescis-
sion Order.
(j) The Rescission Order shall remain in effect
until cancelled by the Regional Administrator. The
Regional Administrator may cancel a Rescission
Order at any time, so long as he notifies those
who commented on the draft order.
(k) The Regional Administrator may not dele-
gate the signature authority for a final Rescission
Order or the cancellation of an order.
(1) Violation of the actions, or terms of oper-
ation, required by a Rescission Order is a violation
of the Safe Drinking Water Act.
§142.19 EPA review of State imple-
mentation of national primary
drinking water regulations for lead
and copper.
(a) Pursuant to the procedures in this section,
the Regional Administrator may review state de-
terminations establishing corrosion control or
source water treatment requirements for lead or
copper and may issue an order establishing federal
treatment requirements for a public water system
pursuant to §141.82 (d) and (f) and § 141.83(b)
(2) and (4) where the Regional Administrator finds
that:
(1) A State has failed to issue a treatment deter-
mination by the applicable deadline;
(2) A State has abused its discretion in making
corrosion control or source water treatment deter-
minations in a substantial number of cases or in
cases affecting a substantial population, or
(3) The technical aspects of State's determina-
tion would be indefensible in an expected federal
enforcement action taken against a system.
(b) If the Regional Administrator determines
that review of state determination(s) under this
section may be appropriate, he shall request the
State to forward to EPA the state determination
and all information that was considered by the
State in making its determination, including public
comments, if any, within 60 days of the Regional
Adminstrator's request.
(c) Proposed review of state determinations:
(1) Where the Regional Administrator finds that
review of a state determination under paragraph
(a) of this section is appropriate, he shall issue a
proposed review order which shall:
(i) Identify the public water system(s) affected,
the State determination being reviewed and the
provisions of state and/or federal law at issue;
(ii) Identify the determination that the State
failed to carry out by the applicable deadline, or
identify the particular provisions of the State de-
termination which, in the Regional Administrator's
judgment, fail to carry out properly applicable
treatment requirements, and explain the basis for
the Regional Administrator's conclusion;
17
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§142.20
(iii) Identify the treatment requirements which
the Regional Administrator proposes to apply to
the affected system(s), and explain the basis for
the proposed requirements;
(iv) Request public comment on the proposed
order and the supporting record.
(2) The Regional Administrator shall provide
notice of the proposed review order by:
(i) Mailing the proposed order to the affected
public water system(s), the state agency whose
order is being reviewed, and any other parties of
interest known to the Regional Administrator; and
(ii) Publishing a copy of the proposed order in
a newspaper of general circulation in the affected
communities.
(3) The Regional Administrator shall make
available for public inspection during the comment
period the record supporting the proposed order,
which shall include all of the information submit-
ted by the State to EPA under paragraph (b) of
this section, all other studies, monitoring data and
other information considered by the Agency in de-
veloping the proposed order.
(d) Final review order
(1) Based upon review of all information ob-
tained regarding the proposed review order, in-
cluding public comments, the Regional Adminis-
trator shall issue a final review order within 120
days after issuance of the proposed order which
affirms, modifies, or withdraws the proposed
order. The Regional Administrator may extend the
time period for issuing the final order for good
cause. If the final order modifies or withdraws the
proposed order, the final order shall explain the
reasons supporting the change.
(2) The record of the final order shall consist of
the record supporting the proposed order, all pub-
lic comments, all other information considered by
the Regional Administrator in issuing the final
order and a document responding to all significant
public comments submitted on the proposed order.
If new points are raised or new material supplied
during the public comment period, the Regional
Administrator may support the responses on those
matters by adding new materials to the record. The
record shall be complete when the final order is
issued.
(3) Notice of the final order shall be provided
by mailing the final order to the affected
system(s), the State, and all parties who com-
mented on the proposed order.
(4) Upon issuance of the final order, its terms
constitute requirements of the national primary
drinking water regulation for lead and/or copper
until such time as the Regional Administrator is-
sues a new order (which may include recision of
the previous order) pursuant to the procedures in
this section. Such requirements shall supersede any
inconsistent treatment requirements established by
the State pursuant to the national primary drinking
water regulations for lead and copper.
(5) The Regional Administrator may not issue a
final order to impose conditions less stringent than
those imposed by the State.
(e) The Regional Administrator may not dele-
gate authority to sign the final order under this
section.
(f) Final action of the Regional Administrator
under paragraph (d) of this section shall constitute
action of the Administrator for purposes of 42
U.S.C. §300j-7(a)(2).
[56 FR 26563, June 7, 1991]
Sub pa it C—Review of State-Issued
Variances and Exemptions
§142.20 State-issued variances and ex-
emptions.
States with primary enforcement responsibility
may issue variances and exemptions from the re-
quirements of primary drinking water regulations
under conditions and in a manner which are not
less stringent than the conditions under which, and
the manner in which, variances and exemptions
may be granted under sections 1415 and 1416 of
the Act. In States that do not have primary en-
forcement responsibility, variances and exemptions
from the requirements of applicable national pri-
mary drinking water regulations may be granted
by the Administrator pursuant to subparts E and F.
§142.21 State consideration of a vari-
ance or exemption request.
A State with primary enforcement responsibility
shall act on any variance or exemption request
submitted to it, within 90 days of receipt of the re-
quest.
§142.22 Review of State variances, ex-
emptions and schedules.
(a) Not later than 18 months after the effective
date of the interim national primary drinking water
regulations the Administrator shall complete a
comprehensive review of the variances and ex-
emptions granted (and schedules prescribed pursu-
ant thereto) by the States with primary enforce-
ment responsibility during the one-year period be-
ginning on such effective date. The Administrator
shall conduct such subsequent reviews of exemp-
tions and schedules as he deems necessary to carry
out the purposes of this title, but at least one re-
view shall be completed within each 3-year period
following the completion of the first review under
this paragraph.
(b) Notice of a proposed review shall be pub-
lished in the FEDERAL REGISTER. Such notice shall
18
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§142.32
(1) provide information respecting the location of
data and other information respecting the variances
and exemptions to be reviewed (including data and
other information concerning new scientific mat-
ters bearing on such variances and exemptions),
and (2) advise of the opportunity to submit com-
ments on the variances and exemptions reviewed
and on the need for continuing them. Upon com-
pletion of any such review, the Administrator shall
publish in the FEDERAL REGISTER the results of
his review, together with findings responsive to
any comments submitted in connection with such
§ 142.23 Notice to State.
(a) If the Administrator finds that a State has,
in a substantial number of instances, abused its
discretion in granting variances or exemptions
under section 1415(a) or section 1416(a) of the
Act or failed to prescribe schedules in accordance
with section 1415(a) or section 1416(b) of the Act,
he shall notify the State of his findings. Such no-
tice shall:
(1) Identify each public water system for which
the finding was made;
(2) Specify the reasons for the finding; and
(3) As appropriate, propose revocation of spe-
cific variances or exemptions, or propose revised
schedules for specific public water systems.
(b) The Administrator shall also notify the State
of a public hearing to be held on the provisions
of the notice required by paragraph (a) of this sec-
tion. Such notice shall specify the time and loca-
tion for the hearing. If, upon notification of a find-
ing by the Administrator, the State takes adequate
corrective action, the Administrator shall rescind
his notice to the State of a public hearing, pro-
vided that the Administrator is notified of the cor-
rective action prior to the hearing.
(c) The Administrator shall publish notice of the
public hearing in the FEDERAL REGISTER and in a
newspaper or newspapers of general circulation in
the involved State including a summary of the
findings made pursuant to paragraph (a) of this
section, a statement of the time and location for
the hearing, and the address and telephone number
of an office at which interested persons may ob-
tain further information concerning the hearing.
(d) Hearings convened pursuant to paragraphs
(b) and (c) of this section shall be conducted be-
fore a hearing officer to be designated by the Ad-
ministrator. The hearing shall be conducted by the
hearing officer in an informal, orderly and expedi-
tious manner. The hearing officer shall have au-
thority to call witnesses, receive oral and written
testimony and take such other action as may be
necessary to assure the fair and efficient conduct
of the hearing. Following the conclusion of the
hearing, the hearing officer shall forward the
record of the hearing to the Administrator.
(e) Within 180 days after the date notice is
given pursuant to paragraph (b) of this section, the
Administrator shall:
(1) Rescind the finding for which the notice was
given and promptly notify the State of such rescis-
sion, or
(2) Promulgate with any modifications as appro-
priate such revocation and revised schedules pro-
posed in such notice and promptly notify the State
of such action.
(f) A revocation or revised schedule shall take
effect 90 days after the State is notified under
paragraph (e)(2) of this section.
§142.24 Administrator's rescission.
If, upon notification of a finding by the Admin-
istrator under § 142.23, the State takes adequate
corrective action before the effective date of the
revocation or revised schedule, the Administrator
shall rescind the application of his finding to that
variance, exemption or schedule.
Subpart D—Federal Enforcement
§142.30 Failure by State to assure en-
forcement.
(a) The Administrator shall notify a State and
the appropriate supplier of water whenever he
finds during a period in which the State has pri-
mary enforcement responsibility for public water
systems that a public water system within such
State is not in compliance with any primary drink-
ing water regulation contained in part 141 of this
chapter or with any schedule or other requirements
imposed pursuant to a variance or exemption
granted under section 1415 or 1416 of the Act:
Provided, That the State will be deemed to have
been notified of a violation referred to in a report
submitted by the State.
(b) The Administrator shall provide advice and
technical assistance to such State and public water
system as may be appropriate to bring the system
into compliance by the earliest feasible time.
[41 FR 2918, Jan. 20, 1976, as amended at 52 FR 20675,
June 2, 1987]
§142.31 [Reserved]
§ 142.32 Petition for public hearing.
(a) If the Administrator makes a finding of non-
compliance pursuant to § 142.30 with respect to a
public water system in a State which has primary
enforcement responsibility, the Administrator may,
for the purpose of assisting that State in carrying
19
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§142.33
out such responsibility and upon the petition of
such State or public water system or persons
served by such system, hold, after appropriate no-
tice, public hearings for the purpose of gathering
information as described in § 142.33.
(b) A petition for a public hearing pursuant to
paragraph (a) of this section shall be filed with the
Administrator and shall include the following in-
formation:
(1) The name, address and telephone number of
the individual or other entity requesting a hearing.
(2) If the petition is filed by a person other than
the State or public water system, a statement that
the person is served by the system.
(3) A brief statement of information that the re-
questing person intends to submit at the requested
hearing.
(4) The signature of the individual submitting
the petition; or, if the petition is filed on behalf of
a State, public water system or other entity, the
signature of a responsible official of the State or
other entity.
§142.33 Public hearing.
(a) If the Administrator grants the petition for
public hearing, he shall give appropriate public no-
tice of such hearing. Such notice shall be by publi-
cation in the FEDERAL REGISTER and in a news-
paper of general circulation or by other appro-
priate communications media covering the area
served by such public water system.
(b) A hearing officer designated by the Admin-
istrator shall gather during the public hearing in-
formation from technical or other experts, Federal,
State, or other public officials, representatives of
the public water system, persons served by the
system, and other interested persons on:
(1) The ways in which the system can within
the earliest feasible time be brought into compli-
ance, and
(2) The means for the maximum feasible protec-
tion of the public health during any period in
which such system is not in compliance.
(c) On the basis of the hearing and other avail-
able information the Administrator shall issue rec-
ommendations which shall be sent to the State and
public water system and shall be made available
to the public and communications media.
§142.34 Entry and inspection of public
water systems.
(a) Any supplier of water or other person sub-
ject to a national primary drinking water regula-
tion shall, at any time, allow the Administrator, or
a designated representative of the Administrator,
upon presenting appropriate credentials and a writ-
ten notice of inspection, to enter any establish-
ment, facility or other property of such supplier or
other person to determine whether such supplier or
other person has acted or is acting in compliance
with the requirements of the Act or subchapter D
of this chapter. Such inspection may include in-
spection, at reasonable times, of records, files, pa-
pers, processes, controls and facilities, or testing of
any feature of a public water system, including its
raw water source.
(b) Prior to entry into any establishment, facility
or other property within a State which has primary
enforcement responsibility, the Administrator shall
notify, in writing, the State agency charged with
responsibility for safe drinking water of his inten-
tion to make such entry and shall include in his
notification a statement of reasons for such entry.
The Administrator shall, upon a showing by the
State agency that such an entry will be detrimental
to the administration of the State's program of pri-
mary enforcement responsibility, take such show-
ing into consideration in determining whether to
make such entry. The Administrator shall in any
event offer the State agency the opportunity of
having a representative accompany the Adminis-
trator or his representative on such entry.
(c) No State agency which receives notice under
paragraph (b) of this section may use the informa-
tion contained in the notice to inform the person
whose property is proposed to be entered of the
proposed entry; if a State so uses such informa-
tion, notice to the agency under paragraph (b) of
this section is not required for subsequent inspec-
tions of public water systems until such time as
the Administrator determines that the agency has
provided him satisfactory assurances that it will no
longer so use information contained in a notice re-
ceived under paragraph (b) of this section.
Sub pa it E—Variances Issued by
the Administrator
§ 142.40 Requirements for a variance.
(a) The Administrator may grant one or more
variances to any public water system within a
State that does not have primary enforcement re-
sponsibility from any requirement respecting a
maximum contaminant level of an applicable na-
tional primary drinking water regulation upon a
finding that:
(1) Because of characteristics of the raw water
sources which are reasonably available to the sys-
tem, the system cannot meet the requirements re-
specting the maximum contaminant levels of such
drinking water regulations despite application of
the best technology, treatment techniques, or other
means, which the Administrator finds are generally
available (taking costs into consideration); and
20
-------
§142.43
(2) The granting of a variance will not result in
an unreasonable risk to the health of persons
served by the system.
(b) The Administrator may grant one or more
variances to any public water system within a
State that does not have primary enforcement re-
sponsibility from any requirement of a specified
treatment technique of an applicable national pri-
mary drinking water regulation upon a finding that
the public water system applying for the variance
has demonstrated that such treatment technique is
not necessary to protect the health of persons be-
cause of the nature of the raw water source of
such system.
§142.41 Variance request.
A supplier of water may request the granting of
a variance pursuant to this subpart for a public
water system within a State that does not have pri-
mary enforcement responsibility by submitting a
request for a variance in writing to the Adminis-
trator. Suppliers of water may submit a joint re-
quest for variances when they seek similar
variances under similar circumstances. Any written
request for a variance or variances shall include
the following information:
(a) The nature and duration of variance re-
quested.
(b) Relevant analytical results of water quality
sampling of the system, including results of rel-
evant tests conducted pursuant to the requirements
of the national primary drinking water regulations.
(c) For any request made under § 142.40(a):
(1) Explanation in full and evidence of the best
available treatment technology and techniques.
(2) Economic and legal factors relevant to abil-
ity to comply.
(3) Analytical results of raw water quality rel-
evant to the variance request.
(4) A proposed compliance schedule, including
the date each step toward compliance will be
achieved. Such schedule shall include as a mini-
mum the following dates:
(i) Date by which arrangement for alternative
raw water source or improvement of existing raw
water source will be completed.
(ii) Date of initiation of the connection of the
alternative raw water source or improvement of
existing raw water source.
(iii) Date by which final compliance is to be
achieved.
(5) A plan for the provision of safe drinking
water in the case of an excessive rise in the con-
taminant level for which the variance is requested.
(6) A plan for additional interim control meas-
ures during the effective period of variance.
(d) For any request made under § 142.40(b), a
statement that the system will perform monitoring
and other reasonable requirements prescribed by
the Administrator as a condition to the variance.
(e) Other information, if any, believed to be
pertinent by the applicant.
(f) Such other information as the Administrator
may require.
[41 FR 2918, Jan. 20, 1976, as amended at 52 FR 20675,
June 2, 1987]
§142.42 Consideration of a variance
request.
(a) The Administrator shall act on any variance
request submitted pursuant to § 142.41 within 90
days of receipt of the request.
(b) In his consideration of whether the public
water system is unable to comply with a contami-
nant level required by the national primary drink-
ing water regulations because of the nature of the
raw water source, the Administrator shall consider
such factors as the following:
(1) The availability and effectiveness of treat-
ment methods for the contaminant for which the
variance is requested.
(2) Cost and other economic considerations such
as implementing treatment, improving the quality
of the source water or using an alternate source.
(c) A variance may only be issued to a system
after the system's application of the best tech-
nology, treatment techniques, or other means,
which the Administrator finds are available (taking
costs into consideration).
(d) In his consideration of whether a public
water system should be granted a variance to a re-
quired treatment technique because such treatment
is unnecessary to protect the public health, the Ad-
ministrator shall consider such factors as the fol-
lowing:
(1) Quality of the water source including water
quality data and pertinent sources of pollution.
(2) Source protection measures employed by the
public water system.
[41 FR 2918, Jan. 20, 1976, as amended at 52 FR 20675,
June 2, 1987]
§142.43 Disposition of a variance re-
quest.
(a) If the Administrator decides to deny the ap-
plication for a variance, he shall notify the appli-
cant of his intention to issue a denial. Such notice
shall include a statement of reasons for the pro-
posed denial, and shall offer the applicant an op-
portunity to present, within 30 days of receipt of
the notice, additional information or argument to
the Administrator. The Administrator shall make a
final determination on the request within 30 days
after receiving any such additional information or
argument. If no additional information or argument
21
-------
§142.44
is submitted by the applicant the application shall
be denied.
(b) If the Administrator proposes to grant a
variance request submitted pursuant to § 142.41,
he shall notify the applicant of his decision in
writing. Such notice shall identify the variance, the
facility covered, and shall specify the period of
time for which the variance will be effective.
(1) For the type of variance specified in
§ 142.40(a) such notice shall provide that the vari-
ance will be terminated when the system comes
into compliance with the applicable regulation, and
may be terminated upon a finding by the Adminis-
trator that the system has failed to comply with
any requirements of a final schedule issued pursu-
ant to § 142.44.
(2) For the type of variance specified in
§ 142.40(b) such notice shall provide that the vari-
ance may be terminated at any time upon a find-
ing that the nature of the raw water source is such
that the specified treatment technique for which
the variance was granted is necessary to protect
the health of persons or upon a finding that the
public water system has failed to comply with
monitoring and other requirements prescribed by
the Administrator as a condition to the granting of
the variance.
(c) For a variance specified in § 142.40(a)(l) the
Administrator shall propose a schedule for:
(1) Compliance (including increments of
progress) by the public water system with each
contaminant level requirement covered by the vari-
ance; and,
(2) Implementation by the public water system
of such additional control measures as the Admin-
istrator may require for each contaminant covered
by the variance.
(d) The proposed schedule for compliance shall
specify dates by which steps towards compliance
are to be taken, including at the minimum, where
applicable:
(1) Date by which arrangement for an alter-
native raw water source or improvement of exist-
ing raw water source will be completed.
(2) Date of initiation of the connection for the
alternative raw water source or improvement of
the existing raw water source.
(3) Date by which final compliance is to be
achieved.
(e) The proposed schedule may, if the public
water system has no access to an alternative raw
water source, and can effect or anticipate no ade-
quate improvement of the existing raw water
source, specify an indefinite time period for com-
pliance until a new and effective treatment tech-
nology is developed at which time a new compli-
ance schedule shall be prescribed by the Adminis-
trator.
(f) The proposed schedule for implementation of
additional interim control measures during the pe-
riod of variance shall specify interim treatment
techniques, methods and equipment, and dates by
which steps toward meeting the additional interim
control measures are to be met.
(g) The schedule shall be prescribed by the Ad-
ministrator at the time of granting of the variance,
subsequent to provision of opportunity for hearing
pursuant to § 142.44.
[41 FR 2918, Jan. 20, 1976, as amended at 52 FR 20675,
June 2, 1987]
§142.44 Public hearings on variances
and schedules.
(a) Before a variance and schedule proposed by
the Administrator pursuant to § 142.43 may take
effect, the Administrator shall provide notice and
opportunity for public hearing on the variance and
schedule. A notice given pursuant to the preceding
sentence may cover the granting of more than one
variance and a hearing held pursuant to such no-
tice shall include each of the variances covered by
the notice.
(b) Public notice of an opportunity for hearing
on a variance and schedule shall be circulated in
a manner designed to inform interested and poten-
tially interested persons of the proposed variance
and schedule, and shall include at least the follow-
ing:
(1) Posting of a notice in the principal post of-
fice of each municipality or area served by the
public water system, and publishing of a notice in
a newspaper or newspapers of general circulation
in the area served by the public water system; and
(2) Mailing of a notice to the agency of the
State in which the system is located which is re-
sponsible for the State's water supply program,
and to other appropriate State or local agencies at
the Administrator's discretion.
(3) Such notice shall include a summary of the
proposed variance and schedule and shall inform
interested persons that they may request a public
hearing on the proposed variance and schedule.
(c) Requests for hearing may be submitted by
any interested person other than a Federal agency.
Frivolous or insubstantial requests for hearing may
be denied by the Administrator. Requests must be
submitted to the Administrator within 30 days
after issuance of the public notices provided for in
paragraph (b) of this section. Such requests shall
include the following information:
(1) The name, address and telephone number of
the individual, organization or other entity request-
ing a hearing;
(2) A brief statement of the interest of the per-
son making the request in the proposed variance
22
-------
§142.51
and schedule, and of information that the requester
intends to submit at such hearing;
(3) The signature of the individual making the
request, or, if the request is made on behalf of an
organization or other entity, the signature of a re-
sponsible official of the organization or other en-
tity.
(d) The Administrator shall give notice in the
manner set forth in paragraph (b) of this section
of any hearing to be held pursuant to a request
submitted by an interested person or on his own
motion. Notice of the hearing shall also be sent to
the persons requesting the hearing, if any. Notice
of the hearing shall include a statement of the pur-
pose of the hearing, information regarding the time
and location for the hearing, and the address and
telephone number of an office at which interested
persons may obtain further information concerning
the hearing. At least one hearing location specified
in the public notice shall be within the involved
State. Notice of hearing shall be given not less
than 15 days prior to the time scheduled for the
hearing.
(e) A hearing convened pursuant to paragraph
(d) of this section shall be conducted before a
hearing officer to be designated by the Adminis-
trator. The hearing shall be conducted by the hear-
ing officer in an informal, orderly and expeditious
manner. The hearing officer shall have authority to
call witnesses, receive oral and written testimony
and take such other action as may be necessary to
assure the fair and efficient conduct of the hearing.
Following the conclusion of the hearing, the hear-
ing officer shall forward the record of the hearing
to the Administrator.
(f) The variance and schedule shall become ef-
fective 30 days after notice of opportunity for
hearing is given pursuant to paragraph (b) of this
section if no timely request for hearing is submit-
ted and the Administrator does not determine to
hold a public hearing on his own motion.
[41 FR 2918, Jan. 20, 1976, as amended at 52 FR 20675,
June 2, 1987]
§ 142.45 Action after hearing.
Within 30 days after the termination of the pub-
lic hearing held pursuant to § 142.44, the Adminis-
trator shall, taking into consideration information
obtained during such hearing and relevant infor-
mation, confirm, revise or rescind the proposed
variance and schedule.
[52 FR 20675, June 2, 1987]
§142.46 Alternative treatment tech-
niques.
The Administrator may grant a variance from
any treatment technique requirement of a national
primary drinking water regulation to a supplier of
water, whether or not the public water system for
which the variance is requested is located in a
State which has primary enforcement responsibil-
ity, upon a showing from any person that an alter-
native treatment technique not included in such re-
quirement is at least as efficient in lowering the
level of the contaminant with respect to which
such requirements was prescribed. A variance
under this paragraph shall be conditioned on the
use of the alternative treatment technique which is
the basis of the variance.
Subpart F—Exemptions Issued by
the Administrator
§142.50 Requirements for an exemp-
tion.
The Administrator may exempt any public water
system within a State that does not have primary
enforcement responsibility from any requirement
respecting a maximum contaminant level or any
treatment technique requirement, or from both, of
an applicable national primary drinking water reg-
ulation upon a finding that:
(a) Due to compelling factors (which may in-
clude economic factors), the public water system
is unable to comply with such contaminant level
or treatment technique requirement;
(b) The public water system was in operation on
the effective date of such contaminant level or
treatment technique requirement; and
(c) The granting of the exemption will not result
in an unreasonable risk to health.
§142.51 Exemption request.
A supplier of water may request the granting of
an exemption pursuant to this subpart for a public
water system within a State that does not have pri-
mary enforcement responsibility by submitting a
request for exemption in writing to the Adminis-
trator. Suppliers of water may submit a joint re-
quest for exemptions when they seek similar ex-
emptions under similar circumstances. Any written
request for an exemption or exemptions shall in-
clude the following information:
(a) The nature and duration of exemption re-
quested.
(b) Relevant analytical results of water quality
sampling of the system, including results of rel-
evant tests conducted pursuant to the requirements
of the national primary drinking water regulations.
(c) Explanation of the compelling factors such
as time or economic factors which prevent such
system from achieving compliance.
(d) Other information, if any, believed by the
applicant to be pertinent to the application.
23
-------
§142.52
(e) A proposed compliance schedule, including
the date when each step toward compliance will
be achieved.
(f) Such other information as the Administrator
may require.
§ 142.52 Consideration of an exemption
request.
(a) The Administrator shall act on any exemp-
tion request submitted pursuant to § 142.51 within
90 days of receipt of the request.
(b) In his consideration of whether the public
water system is unable to comply due to compel-
ling factors, the Administrator shall consider such
factors as the following:
(1) Construction, installation, or modification of
the treatment equipment or systems.
(2) The time needed to put into operation a new
treatment facility to replace an existing system
which is not in compliance.
(3) Economic feasibility of compliance.
§142.53 Disposition of an exemption
request.
(a) If the Administrator decides to deny the ap-
plication for an exemption, he shall notify the ap-
plicant of his intention to issue a denial. Such no-
tice shall include a statement of reasons for the
proposed denial, and shall offer the applicant an
opportunity to present, within 30 days of receipt of
the notice, additional information or argument to
the Administrator. The Administrator shall make a
final determination on the request within 30 days
after receiving any such additional information or
argument. If no additional information or argument
is submitted by the applicant, the application shall
be denied.
(b) If the Administrator grants an exemption re-
quest submitted pursuant to § 142.51, he shall no-
tify the applicant of his decision in writing. Such
notice shall identify the facility covered, and shall
specify the termination date of the exemption.
Such notice shall provide that the exemption will
be terminated when the system comes into compli-
ance with the applicable regulation, and may be
terminated upon a finding by the Administrator
that the system has failed to comply with any re-
quirements of a final schedule issued pursuant to
§142.55.
(c) The Administrator shall propose a schedule
for:
(1) Compliance (including increments of
progress) by the public water system with each
contaminant level requirement and treatment tech-
nique requirement covered by the exemption; and
(2) Implementation by the public water system
of such control measures as the Administrator may
require for each contaminant covered by the ex-
emption.
(d) The schedule shall be prescribed by the Ad-
ministrator at the time the exemption is granted,
subsequent to provision of opportunity for hearing
pursuant to § 142.54.
[41 FR 2918, Jan. 20, 1976, as amended at 52 FR 20675,
June 2, 1987]
§142.54 Public hearings on exemption
schedules.
(a) Before a schedule proposed by the Adminis-
trator pursuant to § 142.53 may take effect, the
Administrator shall provide notice and opportunity
for public hearing on the schedule. A notice given
pursuant to the preceding sentence may cover the
proposal of more than one such schedule and a
hearing held pursuant to such notice shall include
each of the schedules covered by the notice.
(b) Public notice of an opportunity for hearing
on an exemption schedule shall be circulated in a
manner designed to inform interested and poten-
tially interested persons of the proposed schedule,
and shall include at least the following:
(1) Posting of a notice in the principal post of-
fice of each municipality or area served by the
public water system, and publishing of a notice in
a newspaper or newspapers of general circulation
in the area served by the public water system.
(2) Mailing of a notice to the agency of the
State in which the system is located which is re-
sponsible for the State's water supply program and
to other appropriate State or local agencies at the
Administrator's discretion.
(3) Such notices shall include a summary of the
proposed schedule and shall inform interested per-
sons that they may request a public hearing on the
proposed schedule.
(c) Requests for hearing may be submitted by
any interested person other than a Federal agency.
Frivolous or insubstantial requests for hearing may
be denied by the Administrator. Requests must be
submitted to the Administrator within 30 days
after issuance of the public notices provided for in
paragraph (b) of this section. Such requests shall
include the following information:
(1) The name, address and telephone number of
the individual, organization or other entity request-
ing a hearing;
(2) A brief statement of the interest of the per-
son making the request in the proposed schedule
and of information that the requesting person in-
tends to submit at such hearing; and
(3) The signature of the individual making the
request, or, if the request is made on behalf of an
organization or other entity, the signature of a
responsibile official of the organization or other
entity.
(d) The Administrator shall give notice in the
manner set forth in paragraph (b) of this section
24
-------
§142.57
of any hearing to be held pursuant to a request
submitted by an interested person or on his own
motion. Notice of the hearing shall also be sent to
the person requesting the hearing, if any. Notice of
the hearing shall include a statement of the pur-
pose of the hearing, information regarding the time
and location of the hearing, and the address and
telephone number of an office at which interested
persons may obtain further information concerning
the hearing. At least one hearing location specified
in the public notice shall be within the involved
State. Notice of the hearing shall be given not less
than 15 days prior to the time scheduled for the
hearing.
(e) A hearing convened pursuant to paragraph
(d) of this section shall be conducted before a
hearing officer to be designated by the Adminis-
trator. The hearing shall be conducted by the hear-
ing officer in an informal, orderly and expeditious
manner. The hearing officer shall have authority to
call witnesses, receive oral and written testimony
and take such action as may be necessary to as-
sure the fair and efficient conduct of the hearing.
Following the conclusion of the hearing, the hear-
ing officer shall forward the record of the hearing
to the Administrator.
[41 FR 2918, Jan. 20, 1976, as amended at 52 FR 20675,
June 2, 1987]
§142.55 Final schedule.
(a) Within 30 days after the termination of the
public hearing pursuant to §142.54, the Adminis-
trator shall, taking into consideration information
obtained during such hearing, revise the proposed
schedule as necessary and prescribe the final
schedule for compliance and interim measures for
the public water system granted an exemption
under § 142.52.
(b) Such schedule must require compliance as
follows:
(1) In the case of an exemption granted with re-
spect to a contaminant level or treatment technique
requirement prescribed by the national primary
drinking water regulations promulgated under sec-
tion 1421(a) of the Safe Drinking Water Act, not
later than June 19, 1987, and
(2) In the case of an exemption granted with re-
spect to a contaminant level or treatment technique
requirement prescribed by national primary drink-
ing water regulations, other than a regulation re-
ferred to in section 1412(a), 12 months after the
issuance of the exemption.
(c) If the public water system has entered into
an enforceable agreement to become a part of a
regional public water system, as determined by the
Administrator, such schedule shall require compli-
ance by the public water system with each con-
taminant level and treatment technique require-
ment prescribed by:
(1) Interim national primary drinking water reg-
ulations pursuant to part 141 of this chapter, by no
later than January 1, 1983; and
(2) Revised national primary drinking water reg-
ulations pursuant to part 141 of this chapter, by no
later than nine years after the effective date of
such regulations.
[41 FR 2918, Jan. 20, 1976, as amended at 52 FR 20675,
June 2, 1987]
§142.56 Extension of date for compli-
ance.
(a) The final date for compliance provided in
any schedule in the case of any exemption may be
extended by the State (in the case of a State which
has primary enforcement responsibility) or by the
Administrator (in any other case) for a period not
to exceed 3 years after the date of the issuance of
the exemption if the public water system estab-
lishes that:
(1) The system cannot meet the standard with-
out capital improvements which cannot be com-
pleted within the period of such exemption;
(2) In the case of a system which needs finan-
cial assistance for the necessary improvements, the
system has entered into an agreement to obtain
such financial assistance; or
(3) The system has entered into an enforceable
agreement to become a part of a regional public
water system; and the system is taking all prac-
ticable steps to meet the standard.
(b) In the case of a system which does not serve
more than 500 service connections and which
needs financial assistance for the necessary im-
provements, an exemption granted under paragraph
(a) (1) or (2) may be renewed for one or more ad-
ditional 2-year periods if the system establishes
that it is taking all practicable steps to meet the
requirements of paragraph (a) of this section.
[52 FR 20676, June 2, 1987]
§142.57 Bottled water, point-of-use,
and point-of-entry devices.
(a) A State may require a public water system
to use bottled water, point-of-use devices, or
point-of-entry devices as a condition of granting
an exemption from the requirements of §§ 141.61
(a) and (c), and § 141.62 of this chapter.
(b) Public water systems using bottled water as
a condition of obtaining an exemption from the re-
quirements of §§141.61 (a) and (c) and
§ 141.62(b) must meet the requirements in
§ 142.62(g).
(c) Public water systems that use point-of-use or
point-of-entry devices as a condition for receiving
25
-------
§142.60
an exemption must meet the requirements in
§ 141.62(h).
[56 FR 3596, Jan. 30, 1991, as amended at 56 FR 30280,
July 1, 1991]
Subpart G—Identification of Best
Technology, Treatment Tech-
niques or Other Means Gen-
erally Available
§142.60 Variances from the maximum
contaminant level for total
trihalomethanes.
(a) The Administrator, pursuant to section
1415(a)(l)(A) of the Act, hereby identifies the fol-
lowing as the best technology, treatment techiques
or other means generally available for achieving
compliance with the maximum contaminant level
for total trihalomethanes (§ 141.12(c)):
(1) Use of chloramines as an alternate or sup-
plemental disinfectant or oxidant.
(2) Use of chlorine dioxide as an alternate or
supplemental disinfectant or oxidant.
(3) Improved existing clarification for THM
precursor reduction.
(4) Moving the point of chlorination to reduce
TTHM formation and, where necessary, substitut-
ing for the use of chlorine as a pre-oxidant
chloramines, chlorine dioxide or potassium per-
manganate.
(5) Use of powdered activated carbon for THM
precursor or TTHM reduction seasonally or inter-
mittently at dosages not to exceed 10 mg/L on an
annual average basis.
(b) The Administrator in a state that does not
have primary enforcement responsibility or a state
with primary enforcement responsibility (primacy
state) that issues variances shall require a commu-
nity water system to install and/or use any treat-
ment method identified in § 142.60(a) as a condi-
tion for granting a variance unless the Adminis-
trator or primacy state determines that such treat-
ment method identified in § 142.60(a) is not avail-
able and effective for TTHM control for the sys-
tem. A treatment method shall not be considered
to be "available and effective" for an individual
system if the treatment method would not be tech-
nically appropriate and technically feasible for that
system or would only result in a marginal reduc-
tion in TTHM for the system. If, upon application
by a system for a variance, the Administrator or
primacy state that issues variances determines that
none of the treatment methods identified in
§ 142.60(a) is available and effective for the sys-
tem, that system shall be entitled to a variance
under the provisions of section 1415(a)(l)(A) of
the Act. The Administrator's or primacy state's
determination as to the availability and effective-
ness of such treatment methods shall be based
upon studies by the system and other relevant in-
formation. If a system submits information intend-
ing to demonstrate that a treatment method is not
available and effective for TTHM control for that
system, the Administrator or primacy state shall
make a finding whether this information supports
a decision that such treatment method is not avail-
able and effective for that system before requiring
installation and/or use of such treatment method.
(c) Pursuant to § 142.43 (c) through (g) or cor-
responding state regulations, the Administrator or
primacy state that issues variances shall issue a
schedule of compliance that may require the sys-
tem being granted the variance to examine the fol-
lowing treatment methods (1) to determine the
probability that any of these methods will signifi-
cantly reduce the level of TTHM for that system,
and (2) if such probability exists, to determine
whether any of these methods are technically fea-
sible and economically reasonable, and that the
TTHM reductions obtained will be commensurate
with the costs incurred with the installation and
use of such treatment methods for that system:
Introduction of off-line water storage for THM precur-
sor reduction.
Aeration for TTHM reduction, where geographically
and environmentally appropriate.
Introduction of clarification where not currently prac-
ticed.
Consideration of alternative sources of raw water.
Use of ozone as an alternate or supplemental disinfect-
ant or oxidant.
(d) If the Administrator or primacy state that is-
sues variances determines that a treatment method
identified in § 142.60(c) is technically feasible,
economically reasonable and will achieve TTHM
reductions commensurate with the costs incurred
with the installation and/or use of such treatment
method for the system, the Administrator or pri-
macy state shall require the system to install and/
or use that treatment method in connection with a
compliance schedule issued under the provisions
of section 1415(a)(l)(A) of the Act. The Adminis-
trator's or primacy state's determination shall be
based upon studies by the system and other rel-
evant information. In no event shall the Adminis-
trator require a system to install and/or use a treat-
ment method not described in § 142.60 (a) or (c)
to obtain or maintain a variance from the TTHM
Rule or in connection with any variance compli-
ance schedule.
[48 FR 8414, Feb. 28, 1983]
§142.61 Variances from the maximum
contaminant level for fluoride.
(a) The Administrator, pursuant to section
1415(a)(l)(A) of the Act, hereby identifies the fol-
lowing as the best technology, treatment tech-
26
-------
§142.62
niques or other means generally available for
achieving compliance with the Maximum Con-
taminant Level for fluoride.
(1) Activated alumina absorption, centrally ap-
plied
(2) Reverse osmosis, centrally applied
(b) The Administrator in a state that does not
have primary enforcement responsibility or a state
with primary enforcement responsibility (primacy
state) that issues variances shall require a commu-
nity water system to install and/or use any treat-
ment method identified in §142.61(a) as a condi-
tion for granting a variance unless the Adminis-
trator or the primacy state determines that such
treatment method identified in § 142.61 (a) as a
condition for granting a variance is not available
and effective for fluoride control for the system. A
treatment method shall not be considered to be
"available and effective" for an individual system
if the treatment method would not be technically
appropriate and technically feasible for that sys-
tem. If, upon application by a system for a vari-
ance, the Administrator or primacy state that is-
sues variances determines that none of the treat-
ment methods identified in § 142.61 (a) are avail-
able and effective for the system, that system shall
be entitled to a variance under the provisions of
section 1415(a)(l)(A) of the Act. The Administra-
tor's or primacy state's determination as to the
availability and effectiveness of such treatment
methods shall be based upon studies by the system
and other relevant information. If a system submits
information to demonstrate that a treatment meth-
od is not available and effective for fluoride con-
trol for that system, the Administrator or primacy
state shall make a finding whether this information
supports a decision that such treatment method is
not available and effective for that system before
requiring installation and/or use of such treatment
method.
(c) Pursuant to § 142.43(c)-(g) or corresponding
state regulations, the Administrator or primacy
state that issues variances shall issue a schedule of
compliance that may require the system being
granted the variance to examine the following
treatment methods (1) to determine the probability
that any of these methods will significantly reduce
the level of fluoride for that system, and (2) if
such probability exists, to determine whether any
of these methods are technically feasible and eco-
nomically reasonable, and that the fluoride reduc-
tions obtained will be commensurate with the
costs incurred with the installation and use of such
treatment methods for that system:
(1) Modification of lime softening;
(2) Alum coagulation;
(3) Electrodialysis;
(4) Anion exchange resins;
(5) Well field management;
(6) Alternate source;
(7) Regionalization.
(d) If the Administrator or primary state that is-
sues variances determines that a treatment method
identified in § 142.61(c) or other treatment method
is technically feasible, economically reasonable,
and will achieve fluoride reductions commensurate
with the costs incurred with the installation and/or
use of such treatment method for the system, the
Administrator or primacy state shall require the
system to install and/or use that treatment method
in connection with a compliance schedule issued
under the provisions of section 1415(a)(l)(A) of
the Act. The Administrator's or primacy state's
determination shall be based upon studies by the
system and other relevant information.
[51 FR 11411, Apr. 2, 1986]
§142.62 Variances and exemptions
from the maximum contaminant
levels for organic and inorganic
chemicals.
(a) The Administrator, pursuant to section
1415(a)(l)(A) of the Act hereby identifies the
technologies listed in paragraphs (a)(l) through
(a)(54) of this section as the best technology, treat-
ment techniques, or other means available for
achieving compliance with the maximum contami-
nant levels for organic chemicals listed in
§§141.61 (a)and(c):
Contaminant
(3) 1 2-Dichloroethane
(4) Trichloroethylene
(5) para-Dichlorobenzene
(6) 1,1-Dichloroethylene
(8) Vinyl chloride
(10) 1,2-Dichloropropane
(11) Ethylbenzene
(12) Monochlorobenzene
(14) Stvrene
Best available technologies
PTAi
X
X
X
X
X
X
X
X
X
X
X
X
X
X
GAC2
X
X
X
X
X
X
X
X
X
X
X
X
X
0X3
27
-------
§142.62
Best available technologies
PTAi
GAC2
0X3
(15) Tetrachloroethylene X
(16) Toluene X
(17) trans-1,2-Dichloroethylene X
(18) Xylense (total) X
(19) Alachlor
(20) Aldicarb
(21) Aldicarb sulfoxide
(22) Aldicarb sulfone
(23) Atrazine
(24) Carbofuran
(25) Chlordane
(26) Dibromochloropropane X
(27) 2,4-D
(28) Ethylene dibromide X
(29) Heptachlor
(30) Heptachlor epoxide
(31) Lindane
(32) Methoxychlor
(33) PCBs
(34) Pentachlorophenol
(35) Toxaphene
(36) 2,4,5-TP
(37) Benzo[a]pyrene
(38) Dalapon
(39) Dichloromethane X
(40) Di(2-ethylhexyl)adipate X
(41) Di(2-ethylhexyl)phthalate
(42) Dinoseb
(43) Diquat
(44) Endothall
(45) Endrin
(46) Glyphosate
(47) Hexachlorobenzene
(48) Hexachlorocyclopentadiene X
(49) Oxamyl (Vydate)
(50) Picloram
(51) Simazine
(52) 1,2,4-Trichlorobenzene X
(53) 1,1,2-Trichloroethane X
(54) 2,3,7,8-TCDD (Dioxin)
1 Packed Tower Aeration
2 Granular Activated Carbon
3 Oxidation (Chlorination or Ozonation)
(b) The Administrator, pursuant to section
1415(a)(l)(A) of the Act, hereby identifies the fol-
lowing as the best technology, treatment tech-
niques, or other means available for achieving
compliance with the maximum contaminant levels
for the inorganic chemicals listed in § 141.62:
BAT FOR INORGANIC COMPOUNDS LISTED IN
§141.62(6)
Antimony ...
Asbestos ...
Barium
Beryllium ...
Cadmium ..
Chromium .
Cyanide
Mercury
Nickel
Nitrite
Nitrate
Selenium ...
Chemical name
BAT(s)
2,7
2,3,8
5,6,7,9
1,2,5,6,7
2,5,6,7
2,5,62,7
5,7,10
21,4,61,71
5,6,7
5,7,9
5,7
1,23,6,7,9
BAT FOR INORGANIC COMPOUNDS LISTED i
§ 141.62(6)—Continued
Chemical name
BAT(s)
i BAT only if influent Hg concentrations <10|ig/1.
2 BAT for Chromium III only.
3 BAT for Selenium IV only.
Key to BATS in Table
1 =Activated Alumina
2=Coagulation/Filtration (not BAT for systems less than
500 service connections)
3=Direct and Diatomite Filtration
4=Granular Activated Carbon
5=Ion Exchange
6=Lime Softening (not BAT for systems less than 500
service connections)
7=Reverse Osmosis
8=Corrosion Control
9=Electrodialysis
10=Chlorme
ll=Ultraviolet
28
-------
§142.62
(c) A State shall require community water sys-
tems and non-transient, non-community water sys-
tems to install and/or use any treatment method
identified in § 142.62 (a) and (b) as a condition for
granting a variance except as provided in para-
graph (d) of this section. If, after the system's in-
stallation of the treatment method, the system can-
not meet the MCL, that system shall be eligible
for a variance under the provisions of section
1415(a)(l)(A) of the Act.
(d) If a system can demonstrate through com-
prehensive engineering assessments, which may
include pilot plant studies, that the treament meth-
ods identified in § 142.62 (a) and (b) would only
achieve a de minimis reduction in contaminants,
the State may issue a schedule of compliance that
requires the system being granted the variance to
examine other treatment methods as a condition of
obtaining the variance.
(e) If the State determines that a treatment
method identified in paragraph (d) of this section
is technically feasible, the Administrator or pri-
macy State may require the system to install and/
or use that treatment method in connection with a
compliance schedule issued under the provisions
of section 1415(a)(l)(A) of the Act. The State's
determination shall be based upon studies by the
system and other relevant information.
(f) The State may require a public water system
to use bottled water, point-of-use devices, point-
of-entry devices or other means as a condition of
granting a variance or an exemption from the re-
quirements of § 141.61 (a) and (c) and § 141.62, to
avoid an unreasonable risk to health. The State
may require a public water system to use bottled
water and point-of-use devices or other means, but
not point-of-entry devices, as a condition for grant-
ing an exemption from corrosion control treatment
requirements for lead and copper in §§ 141.81 and
141.82 to avoid an unreasonable risk to health.
The State may require a public water system to
use point-of-entry devices as a condition for grant-
ing an exemption from the source water and lead
service line replacement requirements for lead and
copper under §§ 141.83 or 141.84 to avoid an un-
reasonable risk to health.
(g) Public water systems that use bottled water
as a condition for receiving a variance or an ex-
emption from the requirements of § 141.61 (a) and
(c) and §141.62, or an exemption from the re-
quirements of §§ 141.81-141.84 must meet the re-
quirements specified in either paragraph (g)(l) or
(g)(2) and paragraph (g)(3) of this section:
(1) The Administrator or primacy State must re-
quire and approve a monitoring program for bot-
tled water. The public water system must develop
and put in place a monitoring program that pro-
vides reasonable assurances that the bottled water
meets all MCLs. The public water system must
monitor a representative sample of the bottled
water for all contaminants regulated under
§ 141.61 (a) and (c) and § 141.62 during the first
three-month period that it supplies the bottled
water to the public, and annually thereafter. Re-
sults of the monitoring program shall be provided
to the State annually.
(2) The public water system must receive a cer-
tification from the bottled water company that the
bottled water supplied has been taken from an
"approved source" as defined in 21 CFR
129.3(a); the bottled water company has conducted
monitoring in accordance with 21 CFR 129.80(g)
(1) through (3); and the bottled water does not ex-
ceed any MCLs or quality limits as set out in 21
CFR 103.35, part 110, and part 129. The public
water system shall provide the certification to the
State the first quarter after it supplies bottled water
and annually thereafter. At the State's option a
public water system may satisfy the requirements
of this subsection if an approved monitoring pro-
gram is already in place in another State.
(3) The public water system is fully responsible
for the provision of sufficient quantities of bottled
water to every person supplied by the public water
system via door-to-door bottled water delivery.
(h) Public water systems that use point-of-use or
point-of-entry devices as a condition for obtaining
a variance or an exemption from NPDWRs must
meet the following requirements:
(1) It is the responsibility of the public water
system to operate and maintain the point-of-use
and/or point-of-entry treatment system.
(2) Before point-of-use or point-of-entry devices
are installed, the public water system must obtain
the approval of a monitoring plan which ensures
that the devices provide health protection equiva-
lent to that provided by central water treatment.
(3) The public water system must apply effec-
tive technology under a State-approved plan. The
microbiological safety of the water must be main-
tained at all times.
(4) The State must require adequate certification
of performance, field testing, and, if not included
in the certification process, a rigorous engineering
design review of the point-of-use and/or point-of-
entry devices.
(5) The design and application of the point-of-
use and/or point-of-entry devices must consider
the potential for increasing concentrations of heter-
otrophic bacteria in water treated with activated
carbon. It may be necessary to use frequent
backwashing, post-contactor disinfection, and
Heterotrophic Plate Count monitoring to ensure
that the microbiological safety of the water is not
compromised.
(6) The State must be assured that buildings
connected to the system have sufficient point-of-
use or point-of-entry devices that are properly in-
29
-------
§142.63
stalled, maintained, and monitored such that all
consumers will be protected.
(7) In requiring the use of a point-of-entry de-
vice as a condition for granting an exemption from
the treatment requirements for lead and copper
under §141.83 or §141.84, the State must be as-
sured that use of the device will not cause in-
creased corrosion of lead and copper bearing ma-
terials located between the device and the tap that
could increase contaminant levels at the tap.
[56 FR 3596, Jan. 30, 1991, as amended at 56 FR 26563,
June 7, 1991; 57 FR 31848, July 17, 1992; 59 FR 33864,
June 30, 1994; 59 FR 34325, July 1, 1994]
§142.63 Variances and exemptions
from the maximum contaminant
level for total coliforms.
(a) No variances or exemptions from the maxi-
mum contaminant level in § 141.63 of this chapter
are permitted.
(b) EPA has stayed the effective date of this
section relating to the total coliform MCL of
§ 141.63(a) of this chapter for systems that dem-
onstrate to the State that the violation of the total
coliform MCL is due to a persistent growth of
total coliforms in the distribution system rather
than fecal or pathogenic contamination, a treat-
ment lapse or deficiency, or a problem in the oper-
ation or maintenance of the distribution system.
[54 FR 27568, June 29, 1989, as amended at 56 FR 1557,
Jan. 15, 1991]
§142.64 Variances and exemptions
from the requirements of part 141,
subpart H—Filtration and Disinfec-
tion.
(a) No variances from the requirements in part
141, subpart H are permitted.
(b) No exemptions from the requirements in
§ 141.72(a)(3) and (b)(2) to provide disinfection
are permitted.
[54 FR 27540, June 29, 1989]
Subpart H—Indian Tribes
SOURCE: 53 FR 37411, Sept. 26, 1988, unless other-
wise noted.
§142.72 Requirements for Tribal eligi-
bility.
The Administrator is authorized to treat an In-
dian Tribe as eligible to apply for primary en-
forcement responsibility for the Public Water Sys-
tem Program if it meets the following criteria:
(a) The Indian Tribe is recognized by the Sec-
retary of the Interior.
(b) The Indian Tribe has a tribal governing
body which is currently "carrying out substantial
governmental duties and powers" over a defined
area, (i.e., is currently performing governmental
functions to promote the health, safety, and wel-
fare of the affected population within a defined
geographic area).
(c) The Indian Tribe demonstrates that the func-
tions to be performed in regulating the public
water systems that the applicant intends to regulate
are within the area of the Indian Tribal govern-
ment's jurisdiction.
(d) The Indian Tribe is reasonably expected to
be capable, in the Administrator's judgment, of
administering (in a manner consistent with the
terms and purposes of the Act and all applicable
regulations) an effective Public Water System pro-
gram.
[53 FR 37411, Sept. 26, 1988, as amended at 59 FR
64344, Dec. 14, 1994]
§142.76 Request by an Indian Tribe
for a determination of eligibility.
An Indian Tribe may apply to the Administrator
for a determination that it meets the criteria of
section 1451 of the Act. The application shall be
concise and describe how the Indian Tribe will
meet each of the requirements of § 142.72. The
application shall consist of the following informa-
tion:
(a) A statement that the Tribe is recognized by
the Secretary of the Interior.
(b) A descriptive statement demonstrating that
the Tribal governing body is currently carrying out
substantial governmental duties and powers over a
defined area. The statement should:
(1) Describe the form of the Tribal government;
(2) Describe the types of governmental func-
tions currently performed by the Tribal governing
body such as, but not limited to, the exercise of
police powers affecting (or relating to) the health,
safety, and welfare of the affected population; tax-
ation; and the exercise of the power of eminent
domain; and
(3) Identify the sources of the Tribal govern-
ment's authority to carry out the governmental
functions currently being performed.
(c) A map or legal description of the area over
which the Indian Tribe asserts jurisdiction; a state-
ment by the Tribal Attorney General (or equiva-
lent official) which describes the basis for the
Tribe's jurisdictional assertion (including the na-
ture or subject matter of the asserted jurisdiction);
a copy of those documents such as Tribal constitu-
tions, by-laws, charters, executive orders, codes,
ordinances, and/or resolutions which the Tribe be-
lieves are relevant to its assertions regarding juris-
diction; and a description of the locations of the
public water systems the Tribe proposes to regu-
late.
30
-------
§142.81
(d) A narrative statement describing the capabil-
ity of the Indian Tribe to administer an effective
Public Water System program. The narrative state-
ment should include:
(1) A description of the Indian Tribe's previous
management experience which may include, the
administration of programs and services authorized
by the Indian Self-Determination and Education
Assistance Act (25 U.S.C. 450 et seq.), the Indian
Mineral Development Act (25 U.S.C. 2101 et
seq.), or the Indian Sanitation Facilities Construc-
tion Activity Act (42 U.S.C. 2004a).
(2) A list of existing environmental or public
health programs administered by the Tribal gov-
erning body and a copy of related Tribal laws,
regulations and policies.
(3) A description of the Indian Tribe's account-
ing and procurement systems.
(4) A description of the entity (or entities)
which exercise the executive, legislative, and judi-
cial functions of the Tribal government.
(5) A description of the existing, or proposed,
agency of the Indian Tribe which will assume pri-
mary enforcement responsibility, including a de-
scription of the relationship between owners/opera-
tors of the public water systems and the agency.
(6) A description of the technical and adminis-
trative capabilities of the staff to administer and
manage an effective Public Water System Program
or a plan which proposes how the Tribe will ac-
quire additional administrative and/or technical ex-
pertise. The plan must address how the Tribe will
obtain the funds to acquire the additional adminis-
trative and technical expertise.
(e) The Administrator may, in his discretion, re-
quest further documentation necessary to support a
Tribe's eligibility.
(f) If the Administrator has previously deter-
mined that a Tribe has met the prerequisites that
make it eligible to assume a role similar to that of
a state as provided by statute under the Safe
Drinking Water Act, the Clean Water Act, or the
Clean Air Act, then that Tribe need provide only
that information unique to the Public Water Sys-
tem program (paragraph (c), (d)(5) and (6) of this
section).
[53 FR 37411, Sept. 26, 1988, as amended at 59 FR
64344, Dec. 14, 1994]
§142.78 Procedure for processing an
Indian Tribe's application.
(a) The Administrator shall process a completed
application of an Indian Tribe in a timely manner.
He shall promptly notify the Indian Tribe of re-
ceipt of the application.
(b) A tribe that meets the requirements of
§ 142.72 is eligible to apply for development
grants and primary enforcement responsibility for
a Public Water System Program and associated
funding under section 1443(a) of the Act and for
primary enforcement responsibility for public
water systems under section 1413 of the Act.
[53 FR 37411 Sept. 26, 1988, as amended at 59 FR
64345, Dec. 14, 1994]
Subpart I—Administrator's Review
of State Decisions that Imple-
ment Criteria Under Which Fil-
tration Is Required
SOURCE: 54 FR 27540, June 29, 1989, unless otherwise
noted.
§ 142.80 Review procedures.
(a) The Administrator may initiate a comprehen-
sive review of the decisions made by States with
primary enforcement responsibility to determine,
in accordance with §141.71 of this chapter, if
public water systems using surface water sources
must provide filtration treatment. The Adminis-
trator shall complete this review within one year
of its initiation and shall schedule subsequent re-
views as (s)he deems necessary.
(b) EPA shall publish notice of a proposed re-
view in the FEDERAL REGISTER. Such notice must:
(1) Provide information regarding the location
of data and other information pertaining to the re-
view to be conducted and other information in-
cluding new scientific matter bearing on the appli-
cation of the criteria for avoiding filtration; and
(2) Advise the public of the opportunity to sub-
mit comments.
(c) Upon completion of any such review, the
Administrator shall notify each State affected by
the results of the review and shall make the results
available to the public.
§ 142.81 Notice to the State.
(a) If the Administrator finds through periodic
review or other available information that a State
(1) has abused its discretion in applying the cri-
teria for avoiding filtration under §141.71 of this
chapter in determining that a system does not have
to provide filtration treatment, or (2) has failed to
prescribe compliance schedules for those systems
which must provide filtration in accordance with
section 1412(b)(7)(C)(ii) of the Act, (s)he shall no-
tify the State of these findings. Such notice shall:
(1) Identify each public water system for which
the Administrator finds the State has abused its
discretion;
(2) Specify the reasons for the finding;
(3) As appropriate, propose that the criteria of
§ 141.71 of this chapter be applied properly to de-
termine the need for a public water system to pro-
vide filtration treatment or propose a revised
31
-------
§142.201
schedule for compliance by the public water sys-
tem with the filtration treatment requirements;
(b) The Administrator shall also notify the State
that a public hearing is to be held on the provi-
sions of the notice required by paragraph (a) of
this section. Such notice shall specify the time and
location of the hearing. If, upon notification of a
finding by the Administrator that the State has
abused its discretion under § 141.71 of this chap-
ter, the State takes corrective action satisfactory to
the Administrator, the Administrator may rescind
the notice to the State of a public hearing.
(c) The Administrator shall publish notice of the
public hearing in the FEDERAL REGISTER and in a
newspaper of general circulation in the involved
State, including a summary of the findings made
pursuant to paragraph (a) of this section, a state-
ment of the time and location for the hearing, and
the address and telephone number of an office at
which interested persons may obtain further infor-
mation concerning the hearing.
(d) Hearings convened pursuant to paragraphs
(b) and (c) of this section shall be conducted be-
fore a hearing officer to be designated by the Ad-
ministrator. The hearing shall be conducted by the
hearing officer in an informal, orderly, and expedi-
tious manner. The hearing officer shall have the
authority to call witnesses, receive oral and written
testimony, and take such other action as may be
necessary to ensure the fair and efficient conduct
of the hearing. Following the conclusion of the
hearing, the hearing officer may make a rec-
ommendation to the Administrator based on the
testimony presented at the hearing and shall for-
ward any such recommendation and the record of
the hearing to the Administrator.
(e) Within 180 days after the date notice is
given pursuant to paragraph (b) of this section, the
Administrator shall:
(1) Rescind the notice to the State of a public
hearing if the State takes corrective action satisfac-
tory to the Administrator; or
(2) Rescind the finding for which the notice was
given and promptly notify the State of such rescis-
sion; or
(3) Uphold the finding for which the notice was
given. In this event, the Administrator shall revoke
the State's decision that filtration was not required
or revoke the compliance schedule approved by
the State, and promulgate, as appropriate, with any
appropriate modifications, a revised filtration deci-
sion or compliance schedule and promptly notify
the State of such action.
(f) Revocation of a State's filtration decision or
compliance schedule and/or promulgation of a re-
vised filtration decision or compliance schedule
shall take effect 90 days after the State is notified
under paragraph (e)(3) of this section.
Subpart J—Procedures for PWS
Administrative Compliance Orders
SOURCE: 56 FR 3755, Jan. 30, 1991, unless otherwise
noted.
§142.201 Purpose.
This part prescribes procedures for notice and
opportunity for public hearings, conferences with
primary States and issuance of administrative com-
pliance orders under section 1414(g) of the Safe
Drinking Water Act, 42 U.S.C. 300g-3(g).
§142.202 Definitions.
(a) The term Hearing Officer means an Envi-
ronmental Protection Agency employee who has
been delegated by the Administrator the authority
to preside over a public hearing held pursuant to
section 1414(g)(2) of the Safe Drinking Water
Act, 42 U.S.C. 300g-3(g)(2).
(b) The term party means any "person" or
"supplier of water" as defined in section 1401 of
the SDWA, 42 U.S.C. 300f, alleged to have vio-
lated any regulation implementation section 1412
of the SDWA, 42 U.S.C. 300g-l, any schedule or
other requirement imposed pursuant to section
1415 or section 1416 of the SDWA, 42 U.S.C.
300g^t and 300g-5, or section 1445 of the
SDWA, 42 U.S.C. 300J-4, or any regulation im-
plementing section 1445.
§142.203 Proposed administrative
compliance orders.
If the Administrator finds that a party has vio-
lated a regulation, schedule, or other requirement
of the SDWA referenced in § 142.202(b), the Ad-
ministrator may prepare a proposed administrative
compliance order that would require the party to
comply with the regulation, schedule, or other re-
quirement that is alleged to have been violated.
Any such proposed administrative order shall state
with reasonable specificity the nature of the viola-
tion, and may, if appropriate, specify a reasonable
time for compliance.
§142.204 Notice of proposed adminis-
trative compliance orders.
The Administrator shall simultaneously provide
a copy of any proposed administrative compliance
order to:
(a) The party. The Administrator shall provide
a copy of a proposed compliance order to the
party personally or by sending it to the party by
certified mail, return receipt requested. The Ad-
ministrator shall provide a copy of a proposed ad-
ministrative compliance order to an appropriate
person, such as the affected location or facility
manager, or any other appropriate employee or
agent of the party who in the ordinary course of
32
-------
§142.207
business is authorized to sign for certified mail on
behalf of the party. If the party is a federal agen-
cy, State or State agency, or a local unit of gov-
ernment, the Administrator shall provide a copy of
a proposed administrative order to its chief execu-
tive officer, or its authorized agent for receipt of
certified mail. Notification of the party is complete
upon acceptance of personal service or when the
return receipt is signed. If personal service is inef-
fective and if certified mail is refused or un-
claimed, the Administrator shall notify the party
by another appropriate means. In such case, notifi-
cation is complete upon the execution of sub-
stituted service.
(b) The public. The Administrator shall make
publicly available each proposed administrative
compliance order at the time of its proposal.
(c) The State. In the case of a State with pri-
mary enforcement responsibility for public water
systems pursuant to section 1413(a) of the SDWA,
42 U.S.C. 300g-2(a), the Administrator shall pro-
vide notice under this subsection by sending a
copy of each proposed administrative compliance
order by certified mail, return receipt requested to
the appropriate State agency of the State involved.
§142.205 Opportunity for public hear-
ings; opportunity for State con-
ferences.
(a) The Administrator shall provide the party,
the public and the State an opportunity for a pub-
lic hearing on any proposed administrative compli-
ance order by stating in a letter accompanying
each proposed administrative compliance order (or
its copy) that a public hearing shall be convened
if the party or the State sends written notice of
such request to the Administrator within fourteen
days of receipt of the proposed administrative
compliance order noticed under § 142.204, or if
the Administrator determines that within fourteen
days of the date of notice the public has expressed
a significant interest in the convening of a public
hearing. Hearings will be held only for the pur-
poses specified in § 142.206(a). All requests for
hearings shall identify which of the purposes spec-
ified in § 142.206(a) is the basis for the request.
The Administrator may extend the time allowed
for submitting requests for good cause.
(b) In the case of a State with primary enforce-
ment responsibility under section 1413(a) of the
SDWA, the Administrator shall provide the State
with an opportunity to confer regarding any pro-
posed administrative compliance order to a public
water supplier by stating in a letter accompanying
each mailing of the proposed administrative com-
pliance order sent to the State that such a con-
ference shall be held between the State and the
Administrator, if the State requests such a con-
ference within ten days of the dates of receipt of
proposed administrative compliance order noticed
under § 142.204.
(c) For purposes of this subsection, receipt oc-
curs at the time of personal service or three days
after the date of mailing or other means of sub-
stituted service, except that if receipt is provided
by certified mail, return receipt requested, notice
occurs when the return receipt is signed. For the
purpose of computation of time, the day of the
mailing, Saturdays, Sundays, and federal holidays
are excluded.
§ 142.206 Conduct of public hearings.
(a) The purpose of the public hearing shall be
to determine whether a proposed administrative
order:
(1) Has correctly stated the extent and nature of
a party's violation of any regulation, schedule, or
other requirement of the SDWA referenced in
§ 142.202(b) and
(2) Has provided, where appropriate, a reason-
able time for the party to comply with applicable
requirements of the SDWA and its implementing
regulations.
(b) Prior to convening a public hearing under
this subsection, the Administrator shall appoint a
Hearing Officer. The Hearing Officer shall preside
over any public hearing convened under this sec-
tion. The Hearing Officer shall determine the form
and procedures of the public hearing, and shall
maintain complete and accurate record of the pro-
ceedings in written or other permanent form. The
Hearing Officer shall provide the Administrator
with the record of any public hearing conducted
under this subsection.
(c) The party, any member of the public, or the
State may present information to the Hearing Offi-
cer at the public hearing (or to the Administrator
in writing before the date set for the public hear-
ing) relevant to whether:
(1) The party has violated the applicable regula-
tion, schedule, or other requirement referenced in
the proposed administrative compliance order;
(2) The party has violated any other applicable
regulation, schedule, or other requirement of the
SDWA referenced in § 142.202(b); and
(3) The proposed order, where appropriate, pro-
vides a reasonable time for the party to comply
with applicable requirements of the SDWA and its
implementing regulations.
§142.207 Issuance, amendment or
withdrawal of administrative com-
pliance order.
(a) Based on the administrative record, the Ad-
ministrator shall either issue the order as proposed,
amend the proposed order or withdraw the pro-
posed order.
33
-------
§142.208
(b) Any order issued shall require the party to 1413(a) of the SDWA, or in the case of a State
comply with any applicable regulation, schedule, participating under § 142.206(c).
or other requirement of the SDWA referenced in
§ 142.202(b) and may establish a time or date for § 142.208 Administrative assessment of
compliance which the Administrator determines is civil penalty for violation of admin-
reasonable, based on the administrative record. istrative compliance order.
(c) The Administrator shall determine within a In the event the Administrator decides to seek
reasonable time whether to issue, amend or with- a penalty under the authority provided in section
draw the proposed order and shall promptly notify 1414(g)(3)(B) of the SDWA, 42 U.S.C. 300g-
in writing the party, all members of the public par- 3(g)(3)(B), for violation of, or failure or refusal to
ticipating under § 142.206(c) and the State, in the comply with, an order, the procedures provided in
case of a State with primary enforcement authority 40 CFR part 22 shall govern the assessment of
over public water systems pursuant to section such a penalty.
34
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PART 143—NATIONAL SECONDARY
DRINKING WATER REGULATIONS
Sec.
143.1 Purpose.
143.2 Definitions.
143.3 Secondary maximum contaminant levels.
143.4 Monitoring.
143.5 Compliance with secondary maximum contami-
nant level and public notification for fluoride.
AUTHORITY: 42 U.S.C. 300f et seq.
SOURCE: 44 FR 42198, July 19, 1979, unless otherwrse
noted.
§143.1 Purpose.
This part establishes National Secondary Drink-
ing Water Regulations pursuant to section 1412 of
the Safe Drinking Water Act, as amended (42
U.S.C. 300g-l). These regulations control con-
taminants in drinking water that primarily affect
the aesthetic qualities relating to the public accept-
ance of drinking water. At considerably higher
concentrations of these contaminants, health impli-
cations may also exist as well as aesthetic deg-
radation. The regulations are not Federally en-
forceable but are intended as guidelines for the
States.
§143.2 Definitions.
(a) Act means the Safe Drinking Water Act as
amended (42 U.S.C. 300f et seq.).
(b) Contaminant means any physical, chemical,
biological, or radiological substance or matter in
water.
(c) Public water system means a system for the
provision to the public of piped water for human
consumption, if such a system has at least fifteen
service connections or regularly serves an average
of at least twenty-five individuals daily at least 60
days out of the year. Such term includes (1) any
collection, treatment, storage, and distribution fa-
cilities under control of the operator of such sys-
tem and used primarily in connection with such
system, and (2) any collection or pretreatment
storage facilities not under such control which are
used primarily in connection with such system. A
public water system is either a "community water
system" or a "non-community water system."
(d) State means the agency of the State or Trib-
al government which has jurisdiction over public
water systems. During any period when a State
does not have responsibility pursuant to section
1443 of the Act, the term "State" means the Re-
gional Administrator, U.S. Environmental Protec-
tion Agency.
(e) Supplier of water means any person who
owns or operates a public water system.
(f) Secondary maximum contaminant levels
means SMCLs which apply to public water sys-
tems and which, in the judgement of the Adminis-
trator, are requisite to protect the public welfare.
The SMCL means the maximum permissible level
of a contaminant in water which is delivered to
the free flowing outlet of the ultimate user of pub-
lic water system. Contamimants added to the water
under circumstances controlled by the user, except
those resulting from corrosion of piping and
plumbing caused by water quality, are excluded
from this definition.
[44 FR 42198, July 19, 1979, as amended at 53 FR
37412, Sept. 26, 1988]
§143.3 Secondary maximum contami-
nant levels.
The secondary maximum contaminant levels for
public water systems are as follows:
Contaminant
Chloride
Color
Copper
Iron
Manganese
Odor
pH
Silver
Sulfate
Total dissolved solids (TDS) .
Zinc
Level
0 05 to 0 2 mg/l
250 mg/l.
15 color units.
1.0 mg/l.
2 0 mg/l
0 5 mg/l
0.3 mg/l.
0.05 mg/l.
3 threshold odor number.
65-85
0 1 mg/l
250 mg/l
500 mg/l.
5 mg/l.
These levels represent reasonable goals for drink-
ing water quality. The States may establish higher
or lower levels which may be appropriate depend-
ent upon local conditions such as unavailability of
alternate source waters or other compelling factors,
provided that public health and welfare are not ad-
versely affected.
[44 FR 42198, July 19, 1979, as amended at 51 FR
11412, Apr. 2, 1986; 56 FR 3597, Jan. 30, 1991]
§143.4 Monitoring.
(a) It is recommended that the parameters in
these regulations should be monitored at intervals
no less frequent than the monitoring performed for
inorganic chemical contaminants listed in the Na-
tional Interim Primary Drinking Water Regulations
as applicable to community water systems. More
frequent monitoring would be appropriate for spe-
cific parameters such as pH, color, odor or others
under certain circumstances as directed by the
State.
(b) Measurement of pH, copper and fluoride to
determine compliance under § 143.3 may be con-
ducted with one of the methods in § 141.23(k)(l).
Analyses of aluminum, chloride, foaming agents,
iron, manganese, odor, silver, sulfate, total dis-
solved solids (TDS) and zinc to determine compli-
-------
§143.5
ance under § 143.3 may be conducted with the
methods in the following Table. Criteria for ana-
lyzing aluminum, copper, iron, manganese, silver
and zinc samples with digestion or directly with-
out digestion, and other analytical test procedures
are contained in Technical Notes on Drinking
Water Methods, EPA-600/R-94-173, October
1994, which is available at NTIS PB95-104766.
Contaminant
Aluminum
Chloride
Color
Iron
Manganese
Odor
Silver
Sulfate
IDS
EPA
2200.7
2 200 8
2 200 9
1 300.0
2 200.7
2 200.9
2200.7
2 200 8
2 200.9
2 200 7
2 200.8
2 200 9
1 300.0
13752
2 200 7
2 200.8
ASTM3
D4327-91
D4327-91
SM4
3120B.
3113B
3111D
4110
4500-CI— D.
2120B.
5540C
3120B.
3111B
3113B.
3120B.
3111B
3113B.
21 SOB
3120B
3111B.
3113B
4110.
4500-SO 4-F
4500-SO4-C,D.
2540C.
3120B
3111B.
Other
I-3720-85 5
FOOTNOTES:
'"Methods for the Determination of Inorganic Substances in Environmental Samples", EPA-600/R-93-100, August 1993.
Available at NTIS, PB94-121811.
2"Methods for the Determination of Metals in Environmental Samples—Supplement I", EPA-600/R-94-111, May 1994. Avail-
able at NTIS, PB94-184942.
3The procedures shall be done in accordance with the Annual Book of ASTM Standards, 1994, Vols. 11.01 and 11.02, Amer-
ican Society for Testing and Materials. This incorporation by reference was approved by the Director of the Federal Register in
accordance with 5 U.S.C. 552(a) and 1 CFR Part 51. Copies may be obtained from the American Society for Testing and Mate-
rials, 1916 Race Street, Philadelphia, PA 19103. Copies may be inspected at EPAs Drinking Water Docket, 401 M Street, SW.,
Washington, DC 20460; or at the Office of the Federal Register, 800 North Capitol Street, NW., Suite 700, Washington, DC.
4The procedures shall be done in accordance with the 18th edition of Standard Methods for the Examination of Water and
Wastewater, 1992, American Public Health Association. This incorporation by reference was approved by the Director of the
Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR Part 51. Copies may be obtained from the American Public
Health Association, 1015 Fifteenth Street NW., Washington, DC 20005. Copies may be inspected at EPA's Drinking Water Dock-
et, 401 M Street, SW., Washington, DC 20460; or at the Office of the Federal Register, 800 North Capitol Street, NW., Suite
700, Washington, DC.
5 Available from Books and Open-File Reports Section, U.S. Geological Survey, Federal Center, Box 25425, Denver, CO
80225-0425.
[44 FR 42198, July 19, 1979, as amended at 53 FR 5147,
Feb. 19, 1988; 56 FR 30281, July 1, 1991; 59 FR 62470,
Dec. 5, 1994]
§143.5 Compliance with secondary
maximum contaminant level and
public notification for fluoride.
(a) Community water systems, as defined in 40
CFR 141.2(e)(i) of this title, that exceed the sec-
ondary maximum contaminant level for fluoride as
determined by the last single sample taken in ac-
cordance with the requirements of § 141.23 of this
title or any equivalent state law, but do not exceed
the maximum contaminant level for flouride as
specified by §141.62 of thid title or any equiva-
lent state law, shall provivde the notice described
in paragraph (b) of all billing units annually, all
new billing units at the time service begins, and
the state public health officer.
(b) The notice required by paragraph (a) shall
contain the following language including the lan-
guage necessary to replace the superscripts:
PUBLIC NOTICE
Dear User,
The U.S. Environmental Protection Agency requires
that we send you this notice on the level of fluoride in
your drinking water. The drinking water in your commu-
nity has a fluoride concentration of : milligrams per liter
(mg/1).
Federal regulations require that fluoride, which occurs
naturally in your water supply, not exceed a concentration
of 4.0 mg/1 in drinking water. This is an enforceable
standard called a Maximum Contaminant Level (MCL),
and it has been established to protect the public health.
Exposure to drinking water levels above 4.0 mg/1 for
many years may result in some cases of crippling skeletal
fluorosis, which is a serious bone disorder.
Federal law also requires that we notify you when
monitoring indicates that the fluoride in your drinking
water exceeds 2.0 mg/1. This is intended to alert families
about dental problems that might affect children under
-------
§143.5
nine years of age. The fluoride concentration of your fits of cavity prevention while the possibility of stained
water exceeds this federal guideline. and pitted teeth is minimized. Removal of fluoride may
Fluoride in children's drinking water at levels of ap- increase your water costs. Treatment systems are also
proximately 1 mg/1 reduces the number of dental cavities. commercially available for home use. Information on such
However, some children exposed to levels of fluoride systems is available at the address given below. Low flu-
greater than about 2.0 mg/1 may develop dental fluorosis. onde bottled drinking water that would meet all standards
Dental fluorosis, in its moderate and severe forms, is a is also commercially available.
brown staining and/or pitting of the permanent teeth. For further information, contact 2 at your water system.
Because dental fluorosis occurs only when developing !PWS shall insert the compliance result which trig-
teeth (before they erupt from the gums) are exposed to gered notification under this part.
elevated fluoride levels, households without children are 2PWS shall insert the name, address, and telephone
not expected to be affected by this level of fluoride. Fam- number of a contact person at the PWS.
ihes with children under the age of nine are encouraged ^ The effective date of this section is May 2,
to seek other sources of drinking water for their children , go--
to avoid the possibility of staining and pitting.
Your water supplier can lower the concentration of flu- [51 FR 11412, Apr. 2, 1986; 51 FR 24329, July 3, 1986,
oride in your water so that you will still receive the bene- as amended at 52 FR 41550, Oct. 28, 1987]
-------
PART 144—UNDERGROUND
INJECTION CONTROL PROGRAM
Subpart A—General Provisions
Sec.
144.1 Purpose and scope of part 144.
144.2 Promulgation of Class II programs for Indian
lands.
144.3 Definitions.
144.4 Considerations under Federal law.
144.5 Confidentiality of information.
144.6 Classification of wells.
144.7 Identification of underground sources of drinking
water and exempted aquifers.
144.8 Noncompliance and program reporting by the Di-
rector.
Subpart B—General Program Require-
ments
144.11 Prohibition of unauthorized injection.
144.12 Prohibition of movement of fluid into under-
ground sources of drinking water.
144.13 Prohibition of Class IV wells.
144.14 Requirements for wells injecting hazardous
waste.
144.15 [Reserved]
144.16 Waiver of requirement by Director.
144.17 Records.
Subpart C—Authorization of Under-
ground Injection by Rule
144.21 Existing Class I, II (except enhanced recovery
and hydrocarbon storage) and III wells.
144.22 Existing Class II enhanced recovery and hydro-
carbon storage wells.
144.23 Class IV wells.
144.24 Class V wells.
144.25 Requiring a permit.
144.26 Inventory requirements.
144.27 Requiring other information.
144.28 Requirements for Class I, II, and III wells au-
thorized by rule.
Subpart D—Authorization by Permit
144.31 Application for a permit; authorization by per-
mit.
144.32 Signatories to permit applications and reports.
144.33 Area permits.
144.34 Emergency permits.
144.35 Effect of a permit.
144.36 Duration of permits.
144.37 Continuation of expiring permits.
144.38 Transfer of permits.
144.39 Modification or revocation and reissuance of
permits.
144.40 Termination of permits.
144.41 Minor modifications of permits.
Subpart E—Permit Conditions
144.51 Conditions applicable to all permits.
144.52 Establishing permit conditions.
144.53 Schedule of compliance.
144.54 Requirements for recording and reporting of
monitoring results.
144.55 Corrective action.
Subpart F—Financial Responsibility:
Class I Hazardous Waste Injection
Wells
144.60 Applicability.
144.61 Definitions of terms as used in this subpart.
144.62 Cost estimate for plugging and abandonment.
144.63 Financial assurance for plugging and abandon-
ment.
144.64 Incapacity of owners or operators, guarantors, or
financial institutions.
144.65 Use of State-required mechanisms.
144.66 State assumption of responsibility.
144.70 Wording of the instruments.
AUTHORITY: Safe Drinking Water Act, 42 U.S.C. 300f
et seq; Resource Conservation and Recovery Act, 42
U.S.C. 6901 etseq.
SOURCE: 48 FR 14189, Apr. 1, 1983, unless otherwise
noted.
Subpart A—General Provisions
§144.1 Purpose and scope of part 144.
(a) Contents of part 144. The regulations in this
part set forth requirements for the Underground
Injection Control (UIC) program promulgated
under Part C of the Safe Drinking Water Act
(SOWA) (Pub. L. 93-523, as amended; 42 U.S.C.
300f et seq.) and, to the extent that they deal with
hazardous waste, the Resource Conservation and
Recovery Act (RCRA) (Pub. L. 94-580 as amend-
ed; 42 U.S.C. 6901 et seq.).
(b) Applicability. (1) The regulations in this part
establish minimum requirements for UIC pro-
grams. To the extent set forth in part 145, each
State must meet these requirements in order to ob-
tain primary enforcement authority for the UIC
program in that State.
(2) In addition to serving as minimum require-
ments for UIC programs, the regulations in this
part constitute a part of the UIC program for
States listed in part 147 to be administered directly
by EPA.
(c) The information requirements located in the
following sections have been cleared by the Office
of Management and Budget: Sections 144.11,
144.28(c)(d)(i), 144.31, 14.33, 144.5l(j)(m) (n),
144.52(a), 144.54, 144.55, 144.15, 144.23, 144.26,
144.27, 144.28(i)(k), 144.5l(o), 146.52. The OMB
clearance number is 2040-0042.
(d) Authority. (1) Section 1421 of SDWA re-
quires the Administrator to promulgate regulations
establishing minimum requirements for effective
UIC programs.
(2) Section 1422 of SDWA requires the Admin-
istrator to list in the FEDERAL REGISTER "each
State for which in his judgment a State under-
1
-------
§144.1
ground injection control program may be nec-
essary to assure that underground injection will
not endanger drinking water sources" and to es-
tablish by regulation a program for EPA adminis-
tration of UIC programs in the absence of an ap-
proved State program in a listed State.
(3) Section 1423 of SDWA provides procedures
for EPA enforcement of UIC requirements.
(4) Section 1431 authorizes the Administrator to
take action to protect the health of persons when
a contaminant which is present in or may enter a
public water system or underground source of
drinking water may present an imminent and sub-
stantial endangerment to the health of persons.
(5) Section 1445 of SDWA authorizes the pro-
mulgation of regulations for such recordkeeping,
reporting, and monitoring requirements "as the
Administrator may reasonably require * * * to as-
sist him in establishing regulations under this
title," and a "right of entry and inspection to de-
termine compliance with this title, including for
this purpose, inspection, at reasonable time, or
records, files, papers, processes, controls, and fa-
cilities * * *."
(6) Section 1450 of SDWA authorizes the Ad-
ministrator "to prescribe such regulations as are
necessary or appropriate to carry out his func-
tions" under SDWA.
(e) Overview of the UIC program. An UIC pro-
gram is necessary in any State listed by EPA
under section 1422 of the SDWA. Because all
States have been listed, the SDWA requires all
States to submit an UIC program within 270 days
after July 24, 1980, the effective date of 40 CFR
part 146, which was the final element of the UIC
minimum requirements to be originally promul-
gated, unless the Administrator grants an exten-
sion, which can be for a period not to exceed an
additional 270 days. If a State fails to submit an
approvable program, EPA will establish a program
for that State. Once a program is established,
SDWA provides that all underground injections in
listed States are unlawful and subject to penalties
unless authorized by a permit or a rule. This part
sets forth the requirements governing all UIC pro-
grams, authorizations by permit or rule and pro-
hibits certain types of injection. The technical reg-
ulations governing these authorizations appear in
40 CFR part 146.
(f) Structure of the UIC program—(1) Part 144.
This part sets forth the permitting and other pro-
gram requirements that must be met by UIC Pro-
grams, whether run by a State or by EPA. It is di-
vided into the following subparts:
(i) Subpart A describes general elements of the
program, including definitions and classifications.
(ii) Subpart B sets forth the general program re-
quirements, including the performance standards
applicable to all injection activities, basic elements
that all UIC programs must contain, and provi-
sions for waiving permit of rule requirements
under certain circumstances.
(iii) Subpart C sets forth requirements for wells
authorized by rule.
(iv) Subpart D sets forth permitting procedures.
(v) Subpart E sets forth specific conditions, or
types of conditions, that must at a minimum be in-
cluded in all permits.
(vi) Subpart F sets forth the financial respon-
sibility requirements for owners and operators of
all existing and new Class I hazardous waste in-
jection wells.
(2) Part 145. While part 144 sets forth mini-
mum requirements for all UIC Programs, these re-
quirements are specifically identified as elements
of a State application for primacy to administer an
UIC Program in part 145. Part 145 also sets forth
the necessary elements of a State submission and
the procedural requirements for approval of State
programs.
(3) Part 124. The public participation require-
ments that must be met by UIC Programs, whether
administered by the State or by EPA, are set forth
in part 124. EPA must comply with all part 124
requirements; State administered programs must
comply with part 124 as required by part 145.
These requirements carry out the purposes of the
public participation requirement of 40 CFR part 25
(Public Participation), and supersede the require-
ments of that part as they apply to the UIC Pro-
gram.
(4) Part 146. This part sets forth the technical
criteria and standards that must be met in permits
and authorizations by rule as required by part 144.
(g) Scope of the permit or rule requirement. The
UIC Permit Program regulates underground injec-
tions by five classes of wells (see definition of
"well injection," §144.3). The five classes of
wells are set forth in § 144.6. All owners or opera-
tors of these injection wells must be authorized ei-
ther by permit or rule by the Director. In carrying
out the mandate of the SDWA, this subpart pro-
vides that no injection shall be authorized by per-
mit or rule if it results in the movement of fluid
containing any contaminant into Underground
Sources of Drinking Water (USDWs—see § 144.3
for definition), if the presence of that contaminant
may cause a violation of any primary drinking
water regulation under 40 CFR part 142 or may
adversely affect the health of persons (§144.12).
Existing Class IV wells which inject hazardous
waste directly into an underground source of
drinking water are to be eliminated over a period
of six months and new such Class IV wells are to
be prohibited (§144.13). Class V wells will be
inventoried and assessed and regulatory action will
be established at a later date.
-------
§144.3
In the meantime, if remedial action appears nec-
essary, an individual permit may be required
(§ 144.25) or the Director must require remedial
action or closure by order (§ 144.12(c)). During
UIC program development, the Director may iden-
tify aquifers and portions of aquifers which are ac-
tual or potential sources of drinking water. This
will provide an aid to the Director in carrying out
his or her duty to protect all USDWs. An aquifer
is a USDW if it fits the definition, even if it has
not been "identified." The Director may also des-
ignate "exempted aquifers" using criteria in
§ 146.04. Such aquifers are those which would
otherwise qualify as "underground sources of
drinking water" to be protected, but which have
no real potential to be used as drinking water
sources. Therefore, they are not USDWs. No aqui-
fer is an "exempted aquifer" until it has been af-
firmatively designated under the procedures in
§ 144.7. Aquifers which do not fit the definition of
"underground sources of drinking water" are not
"exempted aquifers." They are simply not subject
to the special protection afforded USDWs.
(1) Specific inclusions. The following wells are
included among those types by injection activities
which are covered by the UIC regulations. (This
list is not intended to be exclusive but is for clari-
fication only.)
(i) Any injection well located on a drilling plat-
form inside the State's territorial waters.
(ii) Any dug hole or well that is deeper than its
largest surface dimension, where the principal
function of the hole is emplacement of fluids.
(iii) Any septic tank or cesspool used by gen-
erators of hazardous waste, or by owners or opera-
tors of hazardous waste management facilities, to
dispose of fluids containing hazardous waste.
(iv) Any septic tank, cesspool, or other well
used by a multiple dwelling, community, or Re-
gional system for the injection of wastes.
(2) Specific exclusions. The following are not
covered by these regulations:
(i) Injection wells located on a drilling platform
or other site that is beyond the State's territorial
waters.
(ii) Individual or single family residential waste
disposal systems such as domestic cesspools or
septic systems.
(iii) Non-residential cesspools, septic systems or
similar waste disposal systems if such systems (A)
Are used solely for the disposal of sanitary waste,
and (B) have the capacity to serve fewer than 20
persons a day.
(iv) Injection wells used for injection of hydro-
carbons which are of pipeline quality and are
gases at standard temperature and pressure for the
purpose of storage.
(v) Any dug hole which is not used for em-
placement of fluids underground.
(3) The prohibition applicable to Class IV wells
under § 144.13 does not apply to injections of haz-
ardous wastes into aquifers or portions thereof
which have been exempted pursuant to § 146.04.
(h) Interim Status under RCRA for Class I Haz-
ardous Waste Injection Wells. The minimum na-
tional standards which define acceptable injection
of hazardous waste during the period of interim
status under RCRA are set out in the applicable
provisions of this part, parts 146 and 147, and
§265.430 of this chapter. The issuance of a UIC
permit does not automatically terminate RCRA in-
terim status. A Class I well's interim status does,
however, automatically terminate upon issuance to
that well of a RCRA permit, or upon the well's
receiving a RCRA permit-by-rule under
§270.60(b) of this chapter. Thus, until a Class I
well injecting hazardous waste receives a RCRA
permit or RCRA permit-by-rule, the well's interim
status requirements are the applicable requirements
imposed pursuant to this part and parts 146, 147,
and 265 of this chapter, including any require-
ments imposed in the UIC permit.
[48 FR 14189, Apr. 1, 1983, as amended at 49 FR 20181,
May 11, 1984; 52 FR 20676, June 2, 1987; 52 FR 45797,
Dec. 1, 1987; 53 FR 28147, July 26,
§144.2 Promulgation of Class II pro-
grams for Indian lands.
Notwithstanding the requirements of this part or
parts 124 and 146 of this chapter, the Adminis-
trator may promulgate an alternate UIC Program
for Class II wells on any Indian reservation or In-
dian lands. In promulgating such a program the
Administrator shall consider the following factors:
(a) The interest and preferences of the tribal
government having responsibility for the given
reservation or Indian lands;
(b) The consistency between the alternate pro-
gram and any program in effect in an adjoining ju-
risdiction; and
(c) Such other factors as are necessary and ap-
propriate to carry out the Safe Drinking Water
Act.
§144.3 Definitions.
Terms not defined in this section have the
meaning given by the appropriate Act. When a de-
fined term appears in a definition, the defined term
is sometimes placed within quotation marks as an
aid to readers.
Administrator means the Administrator of the
United States Environmental Protection Agency,
or an authorized representative.
Application means the EPA standard national
forms for applying for a permit, including any ad-
ditions, revisions or modifications to the forms; or
forms approved by EPA for use in approved
-------
§144.3
States, including any approved modifications or re-
visions.
Appropriate Act and regulations means the
Solid Waste Disposal Act, as amended by the Re-
source Conservation and Recovery Act (RCRA);
or Safe Drinking Water Act (SOW A), whichever
is applicable; and applicable regulations promul-
gated under those statutes.
Approved State Program means a UIC program
administered by the State or Indian Tribe that has
been approved by EPA according to SDWA sec-
tions 1422 and/or 1425.
Aquifer means a geological "formation," group
of formations, or part of a formation that is capa-
ble of yielding a significant amount of water to a
well or spring.
Area of review means the area surrounding an
injection well described according to the criteria
set forth in § 146.06 or in the case of an area per-
mit, the project area plus a circumscribing area the
width of which is either Vi of a mile or a number
calculated according to the criteria set forth in
§ 146.06.
Contaminant means any physical, chemical, bio-
logical, or radiological substance or matter in
water.
Director means the Regional Administrator, the
State director or the Tribal director as the context
requires, or an authorized representative. When
there is no approved State or Tribal program, and
there is an EPA administered program, "Director"
means the Regional Administrator. When there is
an approved State or Tribal program, "Director"
normally means the State or Tribal director. In
some circumstances, however, EPA retains the au-
thority to take certain actions even when there is
an approved State or Tribal program. In such
cases, the term "Director" means the Regional
Administrator and not the State or Tribal director.
Draft permit means a document prepared under
§ 124.6 indicating the Director's tentative decision
to issue or deny, modify, revoke and reissue, ter-
minate, or reissue a "permit." A notice of intent
to terminate a permit, and a notice of intent to
deny a permit, as discussed in § 124.5 are types of
"draft permits." A denial of a request for modi-
fication, revocation and reissuance, or termination,
as discussed in § 124.5 is not a "draft permit."
Drilling mud means a heavy suspension used in
drilling an "injection well," introduced down the
drill pipe and through the drill bit.
Eligible Indian Tribe is a Tribe that meets the
statutory requirements established at 42 U.S.C.
Emergency permit means a UIC "permit" is-
sued in accordance with § 144.34.
Environmental Protection Agency ("EPA")
means the United States Environmental Protection
Agency.
EPA means the United States "Environmental
Protection Agency."
Exempted aquifer means an "aquifer" or its
portion that meets the criteria in the definition of
"underground source of drinking water" but
which has been exempted according to the proce-
dures in § 144.7.
Existing injection well means an "injection
well" other than a "new injection well."
Facility or activity means any UIC "injection
well," or an other facility or activity that is sub-
ject to regulation under the UIC program.
Fluid means any material or substance which
flows or moves whether in a semisolid, liquid,
sludge, gas, or any other form or state.
Formation means a body of consolidated or un-
consolidated rock characterized by a degree of
lithologic homogeneity which is prevailingly, but
not necessarily, tabular and is mappable on the
earth's surface or traceable in the subsurface.
Formation fluid means "fluid" present in a
"formation" under natural conditions as opposed
to introduced fluids, such as "drilling mud."
Generator means any person, by site location,
whose act or process produces hazardous waste
identified or listed in 40 CFR part 261.
Ground water means water below the land sur-
face in a zone of saturation.
Hazardous waste means a hazardous waste as
defined in 40 CFR 261.3.
Hazardous waste management facility ("HWM
facility") means all contiguous land, and struc-
tures, other appurtenances, and improvements on
the land used for treating, storing, or disposing of
hazardous waste. A facility may consist of several
treatment, storage, or disposal operational units
(for example, one or more landfills, surface im-
poundments, or combination of them).
HWM facility means "Hazardous Waste Man-
agement facility''
Indian lands means "Indian country" as de-
fined in 18 U.S.C. 1151. That section defines In-
dian country as:
(a) All land within the limits of any Indian res-
ervation under the jurisdiction of the United States
government, notwithstanding the issuance of any
patent, and, including rights-of-way running
through the reservation;
(b) All dependent Indian communities within
the borders of the United States whether within
the original or subsequently acquired territory
thereof, and whether within or without the limits
of a State; and
(c) All Indian allotments, the Indian titles to
which have not been extinguished, including
rights-of-way running through the same.
Indian Tribe means any Indian Tribe having a
Federally recognized governing body carrying out
-------
§144.3
substantial governmental duties and powers over a
defined area.
Injection well means a "well" into which
"fluids" are being injected.
Injection zone means a geological "formation"
group of formations, or part of a formation receiv-
ing fluids through a "well."
Interstate Agency means an agency of two or
more States established by or under an agreement
or compact approved by the Congress, or any
other agency of two or more States or Indian
Tribes having substantial powers or duties pertain-
ing to the control of pollution as determined and
approved by the Administrator under the "appro-
priate Act and regulations."
Major facility means any UIC ' 'facility or activ-
ity" classified as such by the Regional Adminis-
trator, or, in the case of approved State programs,
the Regional Administrator in conjunction with the
State Director.
Manifest means the shipping document origi-
nated and signed by the "generator" which con-
tains the information required by subpart B of 40
CFR part 262.
New injection wells means an "injection well"
which began injection after a UIC program for the
State applicable to the well is approved or pre-
scribed.
Owner or operator means the owner or operator
of any "facility or activity" subject to regulation
under the UIC program.
Permit means an authorization, license, or
equivalent control document issued by EPA or an
approved State to implement the requirements of
this part, parts 145, 146 and 124. "Permit" in-
cludes an area permit (§ 144.33) and an emergency
permit (§ 144.34). Permit does not include UIC au-
thorization by rule (§ 144.21), or any permit which
has not yet been the subject of final agency action,
such as a "draft permit."
Person means an individual, association, part-
nership, corporation, municipality, State, Federal,
or Tribal agency, or an agency or employee there-
of.
Plugging means the act or process of stopping
the flow of water, oil or gas into or out of a for-
mation through a borehole or well penetrating that
formation.
Project means a group of wells in a single oper-
ation.
Radioactive Waste means any waste which con-
tains radioactive material in concentrations which
exceed those listed in 10 CFR part 20, appendix
B, table II, column 2.
RCRA means the Solid Waste Disposal Act as
amended by the Resource Conservation and Re-
covery Act of 1976 (Pub. L. 94-580, as amended
by Pub. L. 95-609, Pub. L. 96-510, 42 U.S.C.
6901 et seq.).
Regional Administrator means the Regional Ad-
ministrator of the appropriate Regional Office of
the Environmental Protection Agency or the au-
thorized representative of the Regional Adminis-
trator.
Schedule of compliance means a schedule of re-
medial measures included in a "permit," includ-
ing an enforceable sequence of interim require-
ments (for example, actions, operations, or mile-
stone events) leading to compliance with the "ap-
propriate Act and regulations."
SDWA means the Safe Drinking Water Act
(Pub. L. 93-523, as amended; 42 U.S.C. 300f et
seq.).
Site means the land or water area where any
"facility or activity" is physically located or con-
ducted, including adjacent land used in connection
with the facility or activity.
State means any of the 50 States, the District of
Columbia, Guam, the Commonwealth of Puerto
Rico, the Virgin Islands, American Samoa, the
Trust Territory of the Pacific Islands, the Com-
monwealth of the Northern Mariana Islands, or an
Indian Tribe treated as a State.
State Director means the chief administrative
officer of any State, interstate, or Tribal agency
operating an "approved program," or the dele-
gated representative of the State director. If the re-
sponsibility is divided among two or more States,
interstate, or Tribal agencies, "State Director"
means the chief administrative officer of the State,
interstate, or Tribal agency authorized to perform
the particular procedure or function to which ref-
erence is made.
State/EPA agreement means an agreement be-
tween the Regional Administrator and the State
which coordinates EPA and State activities, re-
sponsibilities and programs.
Stratum (plural strata) means a single sedi-
mentary bed or layer, regardless of thickness, that
consists of generally the same kind of rock mate-
rial.
Total dissolved solids means the total dissolved
(filterable) solids as determined by use of the
method specified in 40 CFR part 136.
Transferee means the owner or operator receiv-
ing ownership and/or operational control of the
well.
Transferor means the owner or operator trans-
ferring ownership and/or operational control of the
well.
UIC means the Underground Injection Control
program under Part C of the Safe Drinking Water
Act, including an "approved State program."
Underground injection means a "well injec-
tion."
Underground source of drinking water (USDW)
means an aquifer or its portion:
-------
§144.4
(a)(l) Which supplies any public water system;
or
(2) Which contains a sufficient quantity of
ground water to supply a public water system; and
(i) Currently supplies drinking water for human
consumption; or
(ii) Contains fewer than 10,000 mg/1 total dis-
solved solids; and
(b) Which is not an exempted aquifer.
USDW means "underground source of drinking
water.''
Well means a bored, drilled or driven shaft, or
a dug hole, whose depth is greater than the largest
surface dimension.
Well injection means the subsurface emplace-
ment of "fluids" through a bored, drilled, or driv-
en "well;" or through a dug well, where the depth
of the dug well is greater than the largest surface
dimension.
[48 FR 14189, Apr. 1, 1983, as amended at 49 FR 45305,
Nov. 15, 1984; 52 FR 20676, June 2, 1987; 53 FR 37412,
Sept. 26, 1988; 58 FR 63895, Dec. 3, 1993; 59 FR 64345,
Dec. 14, 1994]
§144.4 Considerations under Federal
law.
The following is a list of Federal laws that may
apply to the issuance of permits under these rules.
When any of these laws is applicable, its proce-
dures must be followed. When the applicable law
requires consideration or adoption of particular
permit conditions or requires the denial of a per-
mit, those requirements also must be followed.
(a) The Wild and Scenic Rivers Act, 16 U.S.C.
1273 et seq. Section 7 of the Act prohibits the Re-
gional Administrator from assisting by license or
otherwise the construction of any water resources
project that would have a direct, adverse effect on
the values for which a national wild and scenic
river was established.
(b) The National Historic Preservation Act of
1966, 16 U.S.C. 470 et seq. Section 106 of the
Act and implementing regulations (36 CFR part
800) require the Regional Administrator, before is-
suing a license, to adopt measures when feasible
to mitigate potential adverse effects of the licensed
activity and properties listed or eligible for listing
in the National Register of Historic Places. The
Act's requirements are to be implemented in co-
operation with State Historic Preservation Officers
and upon notice to, and when appropriate, in con-
sultation with the Advisory Council on Historic
Preservation.
(c) The Endangered Species Act, 16 U.S.C.
1531 et seq. Section 7 of the Act and implement-
ing regulations (50 CFR part 402) require the Re-
gional Administrator to ensure, in consultation
with the Secretary of the Interior or Commerce,
that any action authorized by EPA is not likely to
jeopardize the continued existence of any endan-
gered or threatened species or adversely affect its
critical habitat.
(d) The Coastal Zone Management Act, 16
U.S.C. 1451 et seq. Section 307(c) of the Act and
implementing regulations (15 CFR part 930) pro-
hibit EPA from issuing a permit for an activity af-
fecting land or water use in the coastal zone until
the applicant certifies that the proposed activity
complies with the State Coastal Zone Management
program, and the State or its designated agency
concurs with the certification (or the Secretary of
Commerce overrides the States nonconcurrence).
(e) The Fish and Wildlife Coordination Act, 16
U.S.C. 661 et seq., requires the Regional Adminis-
trator, before issuing a permit proposing or author-
izing the impoundment (with certain exemptions),
diversion, or other control or modification of any
body of water, consult with the appropriate State
agency exercising jurisdiction over wildlife re-
sources to conserve these resources.
(f) Executive orders. [Reserved]
(Clean Water Act (33 U.S.C. 1251 et seq.), Safe Drinking
Water Act (42 U.S.C. 300f et seq.), Clean Air Act (42
U.S.C. 7401 et seq.), Resource Conservation and Recov-
ery Act (42 U.S.C. 6901 et seq.))
[48 FR 14189, Apr. 1, 1983, as amended at 48 FR 39621,
Sept. 1, 1983]
§ 144.5 Confidentiality of information.
(a) In accordance with 40 CFR part 2, any in-
formation submitted to EPA pursuant to these reg-
ulations may be claimed as confidential by the
submitter. Any such claim must be asserted at the
time of submission in the manner prescribed on
the application form or instructions or, in the case
of other submissions, by stamping the words
"confidential business information" on each page
containing such information. If no claim is made
at the time of submission, EPA may make the in-
formation available to the public without further
notice. If a claim is asserted, the information will
be treated in accordance with the procedures in 40
CFR part 2 (Public Information).
(b) Claims of confidentiality for the following
information will be denied:
(1) The name and address of any permit appli-
cant or permittee;
(2) Information which deals with the existence,
absence, or level of contaminants in drinking
water.
§144.6 Classification of wells.
Injection wells are classified as follows:
(a) Class I. (1) Wells used by generators of haz-
ardous waste or owners or operators of hazardous
waste management facilities to inject hazardous
waste beneath the lowermost formation containing,
-------
§144.7
within one-quarter mile of the well bore, an under-
ground source of drinking water.
(2) Other industrial and municipal disposal
wells which inject fluids beneath the lowermost
formation containing, within one quarter mile of
the well bore, an underground source of drinking
water.
(b) Class II. Wells which inject fluids:
(1) Which are brought to the surface in connec-
tion with natural gas storage operations, or con-
ventional oil or natural gas production and may be
commingled with waste waters from gas plants
which are an intergral part of production oper-
ations, unless those waters are classified as a haz-
ardous waste at the time of injection.
(2) For enhanced recovery of oil or natural gas;
and
(3) For storage of hydrocarbons which are liq-
uid at standard temperature and pressure.
(c) Class III. Wells which inject for extraction
of minerals including:
(1) Mining of sulfur by the Frasch process;
(2) In situ production of uranium or other met-
als; this category includes only in-situ production
from ore bodies which have not been convention-
ally mined. Solution mining of conventional mines
such as slopes leaching is included in Class V.
(3) Solution mining of salts or potash.
(d) Class IV. (1) Wells used by generators of
hazardous waste or of radioactive waste, by own-
ers or operators of hazardous waste management
facilities, or by owners or operators of radioactive
waste disposal sites to dispose of hazardous waste
or radioactive waste into a formation which within
one-quarter (Vi) mile of the well contains an un-
derground source of drinking water.
(2) Wells used by generators of hazardous waste
or of radioactive waste, by owners or operators of
hazardous waste management facilities, or by own-
ers or operators of radioactive waste disposal sites
to dispose of hazardous waste or radioactive waste
above a formation which within one-quarter (Vi)
mile of the well contains an underground source
of drinking water.
(3) Wells used by generators of hazardous waste
or owners or operators of hazardous waste man-
agement facilities to dispose of hazardous waste,
which cannot be classified under paragraph (a)(l)
or (d) (1) and (2) of this section (e.g., wells used
to dispose of hazardous waste into or above a for-
mation which contains an aquifer which has been
exempted pursuant to § 146.04).
(e) Class V. Injection wells not included in
Classes I, II, III, or IV.
[48 FR 14189, Apr. 1, 1983, as amended at 52 FR 20676,
June 2, 1987]
§144.7 Identification of underground
sources of drinking water and ex-
empted aquifers.
(a) The Director may identify (by narrative de-
scription, illustrations, maps, or other means) and
shall protect, except where exempted under para-
graph (b) of this section, as an underground source
of drinking water, all aquifers or parts of aquifers
which meet the definition of an "underground
source of drinking water" in § 144.3. Even if an
aquifer has not been specifically identified by the
Director, it is an underground source of drinking
water if it meets the definition in § 144.3.
(b)(l) The Director may identify (by narrative
description, illustrations, maps, or other means)
and describe in geographic and/or geometric terms
(such as vertical and lateral limits and gradient)
which are clear and definite, all aquifers or parts
thereof which the Director proposes to designate
as exempted aquifers using the criteria in 40 CFR
146.04.
(2) No designation of an exempted aquifer sub-
mitted as part of a UIC Program shall be final
until approved by the Administrator as part of a
UIC program.
(3) Subsequent to program approval or promul-
gation, the Director may, after notice and oppor-
tunity for a public hearing, identify additional ex-
empted aquifers. For approved State programs ex-
emption of aquifers identifed (i) under § 146.04(b)
shall be treated as a program revision under
§ 145.32; (ii) under § 146.04(c) shall become final
if the State Director submits the exemption in
writing to the Administrator and the Administrator
has not disapproved the designation within 45
days. Any disapproval by the Administrator shall
state the reasons and shall constitute final Agency
action for purposes of judicial review.
(c)(l) For Class III wells, the Director shall re-
quire an applicant for a permit which necessitates
an aquifer exemption under § 146.04(b)(l) to fur-
nish the data necessary to demonstrate that the aq-
uifer is expected to be mineral or hydrocarbon
producing. Information contained in the mining
plan for the proposed project, such as a map and
general description of the mining zone, general in-
formation on the mineralogy and geochemistry of
the mining zone, analysis of the amenability of the
mining zone to the proposed mining method, and
a time-table of planned development of the mining
zone shall be considered by the Director in addi-
tion to the information required by § 144.31(g).
(2) For Class II wells, a demonstration of com-
mercial producibility shall be made as follows:
(i) For a Class II well to be used for enhanced
oil recovery processes in a field or project contain-
ing aquifers from which hydrocarbons were pre-
viously produced, commercial producibility shall
be presumed by the Director upon a demonstration
-------
§144.8
by the applicant of historical production having
occurred in the project area or field.
(ii) For Class II wells not located in a field or
project containing aquifers from which hydro-
carbons were previously produced, information
such as logs, core data, formation description, for-
mation depth, formation thickness and formation
parameters such as permeability and porosity shall
be considered by the Director, to the extent such
information is available.
§144.8 Noncompliance and program
reporting by the Director.
The Director shall prepare quarterly and annual
reports as detailed below. When the State is the
permit-issuing authority, the State Director shall
submit any reports required under this section to
the Regional Administrator. When EPA is the per-
mit-issuing authority, the Regional Administrator
shall submit any report required under this section
to EPA Headquarters.
(a) Quarterly reports. The Director shall submit
quarterly narrative reports for major facilities as
follows:
(1) Format. The report shall use the following
format:
(i) Provide an alphabetized list of permittees.
When two or more permittees have the same
name, the lowest permit number shall be entered
first.
(ii) For each entry on the list, include the fol-
lowing information in the following order:
(A) Name, location, and permit number of the
noncomplying permittees.
(B) A brief description and date of each in-
stance of noncompliance for that permittee. In-
stances of noncompliance may include one or
more the kinds set forth in paragraph (a)(2) of this
section. When a permittee has noncompliance of
more than one kind, combine the information into
a single entry for each such permittee.
(C) The date(s) and a brief description of the
action(s) taken by the Director to ensure compli-
ance.
(D) Status of the instance(s) of noncompliance
with the date of the review of the status or the
date of resolution.
(E) Any details which tend to explain or miti-
gate the instance(s) of noncompliance.
(2) Instances of noncompliance to be reported.
Any instances of noncompliance within the fol-
lowing categories shall be reported in successive
reports until the noncompliance is reported as re-
solved. Once noncompliance is reported as re-
solved it need not appear in subsequent reports.
(i) Failure to complete construction elements.
When the permittee has failed to complete, by the
date specified in the permit, an element of a com-
pliance schedule involving either planning for con-
struction or a construction step (for example, begin
construction, attain operation level); and the per-
mittee has not returned to compliance by accom-
plishing the required elements of the schedule
within 30 days from the date a compliance sched-
ule report is due under the permit.
(ii) Modifications to schedules of compliance.
When a schedule of compliance in the permit has
been modified under § 144.39 or § 144.41 because
of the permittee's noncompliance.
(iii) Failure to complete or provide compliance
schedule or monitoring reports. When the permit-
tee has failed to complete or provide a report re-
quired in a permit compliance schedule (for exam-
ple, progress report or notice of noncompliance or
compliance) or a monitoring report; and the per-
mittee has not submitted the complete report with-
in 30 days from the date it is due under the permit
for compliance schedules, or from the date speci-
fied in the permit for monitoring reports.
(iv) Deficient reports. When the required reports
provided by the permittee are so deficient as to
cause misunderstanding by the Director and thus
impede the review of the status of compliance.
(v) Noncompliance with other permit require-
ments. Noncompliance shall be reported in the fol-
lowing circumstances:
(A) Whenever the permittee has violated a per-
mit requirement (other than reported under para-
graph (a)(2) (i) or (ii) of this section), and has not
returned to compliance within 45 days from the
date reporting of noncompliance was due under
the permit; or
(B) When the Director determines that a pattern
of noncompliance exists for a major facility per-
mittee over the most recent four consecutive re-
porting periods. This pattern includes any violation
of the same requirement in two consecutive report-
ing periods, and any violation of one or more re-
quirements in each of four consecutive reporting
periods; or
(C) When the Director determines significant
permit noncompliance or other significant event
has occurred, such as a migration of fluids into a
USDW.
(vi) All other. Statistical information shall be re-
ported quarterly on all other instances of non-
compliance by major facilities with permit require-
ments not otherwise reported under paragraph (a)
of this section.
(b) Annual reports—(1) Annual noncompliance
report. Statistical reports shall be submitted by the
Director on nonmajor UIC permittees indicating
the total number reviewed, the number of non-
complying nonmajor permittees, the number of en-
forcement actions, and number of permit modifica-
tions extending compliance deadlines. The statis-
tical information shall be organized to follow the
-------
§144.12
types of noncompliance listed in paragraph (a) of
this section.
(2) For State-administered UIC Programs only.
In addition to the annual noncompliance report,
the State Director shall:
(i) Submit each year a program report to the
Administrator (in a manner and form prescribed
by the Administrator) consisting of:
(A) A detailed description of the State's imple-
mentation of its program;
(B) Suggested changes, if any to the program
description (see § 145.23(f)) which are necessary
to reflect more accurately the State's progress in
issuing permits;
(C) An updated inventory of active underground
injection operations in the State.
(ii) In addition to complying with the require-
ments of paragraph (b)(2)(i) of this section, the
Director shall provide the Administrator, on Feb-
ruary 28th and August 31st of each of the first
two years of program operation, the information
required in 40 CFR 146.15, 146.25, and 146.35.
(c) Schedule. (1) For all quarterly reports. On
the last working day of May, August, November,
and February, the State Director shall submit to
the Regional Administrator information concerning
noncompliance with permit requirements by major
facilities in the State in accordance with the fol-
lowing schedule. The Regional Administrator shall
prepare and submit information for EPA-issued
permits to EPA Headquarters in accordance with
the same schedule.
QUARTERS COVERED BY REPORTS ON
NONCOMPLIANCE BY MAJOR FACILITIES
[Date for completion of reports]
January, February, and March 1 May 31
April, May, and June 1Aug. 31
July, August, and September 1 Nov. 30
October, November, and December 1 Feb. 28
1 Reports must be made available to the public for inspec-
tion and copying on this date.
(2) For all annual reports. The period for an-
nual reports shall be for the calendar year ending
December 31, with reports completed and avail-
able to the public no more than 60 days later.
Sub pa it B—General Program
Requirements
§144.11 Prohibition of unauthorized
injection.
Any underground injection, except into a well
authorized by rule or except as authorized by per-
mit issued under the UIC program, is prohibited.
The construction of any well required to have a
permit is prohibited until the permit has been is-
sued.
[48 FR 14189, Apr. 1, 1983, as amended at 58 FR 63895,
Dec. 3, 1993]
§144.12 Prohibition of movement of
fluid into underground sources of
drinking water.
(a) No owner or operator shall construct, oper-
ate, maintain, convert, plug, abandon, or conduct
any other injection activity in a manner that allows
the movement of fluid containing any contaminant
into underground sources of drinking water, if the
presence of that contaminant may cause a viola-
tion of any primary drinking water regulation
under 40 CFR part 142 or may otherwise ad-
versely affect the health of persons. The applicant
for a permit shall have the burden of showing that
the requirements of this paragraph are met.
(b) For Class I, II and III wells, if any water
quality monitoring of an underground source of
drinking water indicates the movement of any con-
taminant into the underground source of drinking
water, except as authorized under part 146, the Di-
rector shall prescribe such additional requirements
for construction, corrective action, operation, mon-
itoring, or reporting (including closure of the in-
jection well) as are necessary to prevent such
movement. In the case of wells authorized by per-
mit, these additional requirements shall be im-
posed by modifying the permit in accordance with
§ 144.39, or the permit may be terminated under
§ 144.40 if cause exists, or appropriate enforce-
ment action may be taken if the permit has been
violated. In the case of wells authorized by rule,
see §§ 144.21 through 144.24. For EPA adminis-
tered programs, such enforcement action shall be
taken in accordance with appropriate sections of
the SOW A.
(c) For Class V wells, if at any time the Direc-
tor learns that a Class V well may cause a viola-
tion of primary drinking water regulations under
40 CFR part 142, he or she shall:
(1) Require the injector to obtain an individual
permit;
(2) Order the injector to take such actions (in-
cluding, where required, closure of the injection
well) as may be necessary to prevent the violation.
For EPA administered programs, such orders shall
be issued in accordance with the appropriate pro-
visions of the SDWA; or
(3) Take enforcement action.
(d) Whenever the Director learns that a Class V
well may be otherwise adversely affecting the
health of persons, he or she may prescribe such
actions as may be necessary to prevent the adverse
effect, including any action authorized under para-
graph (c) of this section.
(e) Notwithstanding any other provision of this
section, the Director may take emergency action
upon receipt of information that a contaminant
-------
§144.13
which is present in or likely to enter a public
water system or underground source of drinking
water may present an imminent and substantial
endangerment to the health of persons. If the Di-
rector is an EPA official, he must first determine
that the appropriate State and local authorities
have not taken appropriate action to protect the
health of such persons, before taking emergency
action.
[48 FR 14189, Apr. 1, 1983, as amended at 52 FR 20676,
June 2, 1987]
§ 144.13 Prohibition of Class IV wells.
(a) The following are prohibited, except as pro-
vided in paragraph (c) of this section:
(1) The construction of any Class IV well.
(2) The operation or maintenance of any Class
IV well not in operation prior to July 18, 1980.
(3) The operation or maintenance of any Class
IV well that was in operation prior to July 18,
1980, after six months following the effective date
of a UIC program approved or promulgated for
the state.
(4) Any increase in the amount of hazardous
waste or change in the type of hazardous waste in-
jected into a Class IV well.
(b) The owner or operator of a Class IV well
shall comply with the requirements of §144.14,
and with the requirements of § 144.23 regarding
closure of Class IV wells.
(c) Wells used to inject contaminated ground
water that has been treated and is being reinjected
into the same formation from which it was drawn
are not prohibited by this section if such injection
is approved by EPA pursuant to provisions for
cleanup of releases under the Comprehensive En-
vironmental Response, Compensation, and Liabil-
ity Act of 1980 (CERCLA), 42 U.S.C. 9601-9657,
or pursuant to requirements and provisions under
the Resource Conservation and Recovery Act
(RCRA), 42 U.S.C. 6901 through 6987.
(d) Clarification. The following wells are not
prohibited by this action:
(1) Wells used to inject hazardous waste into
aquifers or portions thereof that have been ex-
empted pursuant to § 146.4, if the exempted aqui-
fer into which waste is injected underlies the low-
ermost formation containing a USDW. Such wells
are Class I wells as specified in § 144.6(a)(l), and
the owner or operator must comply with the re-
quirements applicable to Class I wells.
(2) Wells used to inject hazardous waste where
no USDW exists within one quarter mile of the
well bore in any underground formation, provided
that the Director determines that such injection is
into a formation sufficiently isolated to ensure that
injected fluids do not migrate from the injection
zone. Such wells are Class I wells as specified in
§ 144.6(a)(l), and the owner or operator must
comply with the requirements applicable to Class
I wells.
[49 FR 20181, May 11, 1984]
§144.14 Requirements for wells inject-
ing hazardous waste.
(a) Applicability. The regulations in this section
apply to all generators of hazardous waste, and to
the owners or operators of all hazardous waste
management facilities, using any class of well to
inject hazardous wastes accompanied by a mani-
fest. (See also §144.13.)
(b) Authorization. The owner or operator of any
well that is used to inject hazardous waste re-
quired to be accompanied by a manifest or deliv-
ery document shall apply for authorization to in-
ject as specified in § 144.31 within 6 months after
the approval or promulgation of the State UIC
program.
(c) Requirements. In addition to complying with
the applicable requirements of this part and 40
CFR part 146, the owner or operator of each facil-
ity meeting the requirements of paragraph (b) of
this section, shall comply with the following:
(1) Notification. The owner or operator shall
comply with the notification requirements of sec-
tion 3010 of Public Law 94-580.
(2) Identification number. The owner or opera-
tor shall comply with the requirements of 40 CFR
264.11.
(3) Manifest system. The owner or operator shall
comply with the applicable recordkeeping and re-
porting requirements for manifested wastes in 40
CFR 264.71.
(4) Manifest discrepancies. The owner or opera-
tor shall comply with 40 CFR 264.72.
(5) Operating record. The owner or operator
shall comply with 40 CFR 264.73(a), (b)(l), and
(6) Annual report. The owner or operator shall
comply with 40 CFR 264.75.
(7) Unmanifested waste report. The owner or
operator shall comply with 40 CFR 264.75.
(8) Personnel training. The owner or operator
shall comply with the applicable personnel training
requirements of 40 CFR 264.16.
(9) Certification of closure. When abandonment
is completed, the owner or operator must submit
to the Director certification by the owner or opera-
tor and certification by an independent registered
professional engineer that the facility has been
closed in accordance with the specifications in
§ 144.52(a)(6).
(d) Additional requirements for Class IV wells.
[Reserved]
10
-------
§144.21
§144.15 [Reserved]
§144.16 Waiver of requirement by Di-
rector.
(a) When injection does not occur into, through
or above an underground source of drinking
water, the Director may authorize a well or project
with less stringent requirements for area of review,
construction, mechanical integrity, operation, mon-
itoring, and reporting than required in 40 CFR part
146 or § 144.52 to the extent that the reduction in
requirements will not result in an increased risk of
movement of fluids into an underground source of
drinking water.
(b) When injection occurs through or above an
underground source of drinking water, but the ra-
dius of endangering influence when computed
under § 146.06(a) is smaller or equal to the radius
of the well, the Director may authorize a well or
project with less stringent requirements for oper-
ation, monitoring, and reporting than required in
40 CFR part 146 or § 144.52 to the extent that the
reduction in requirements will not result in an in-
creased risk of movement of fluids into an under-
ground source of drinking water.
(c) When reducing requirements under para-
graph (a) or (b) of this section, the Director shall
prepare a fact sheet under §124.8 explaining the
reasons for the action.
§144.17 Records.
The Director or the Administrator may require,
by written notice on a selective well-by-well basis,
an owner or operator of an injection well to estab-
lish and maintain records, make reports, conduct
monitoring, and provide other information as is
deemed necessary to determine whether the owner
or operator has acted or is acting in compliance
with Part C of the SDWA or its implementing reg-
ulations.
[58 FR 63895, Dec. 3, 1993]
Sub pa it C—Authorization of
Underground Injection by Rule
§144.21 Existing Class I, II (except en-
hanced recovery and hydrocarbon
storage) and III wells.
(a) An existing Class I, II (except enhanced re-
covery and hydrocarbon storage) and III injection
well is authorized by rule if the owner or operator
injects into the existing well within one year after
the date at which a UIC program authorized under
the SDWA becomes effective for the first time or
inventories the well pursuant to the requirements
of § 144.26. An owner or operator of a well which
is authorized by rule pursuant to this section shall
rework, operate, maintain, convert, plug, abandon
or inject into the well in compliance with applica-
ble regulations.
(b) Duration of well authorization by rule. Well
authorization under this section expires upon the
effective date of a permit issued pursuant to
§§144.25, 144.31, 144.33 or §144.34; after plug-
ging and abandonment in accordance with an ap-
proved plugging and abandonment plan pursuant
to §§ 144.28(c) and 146.10, and upon submission
of a plugging and abandonment report pursuant to
§ 144.28(k); or upon conversion in compliance
with § 144.28(j).
(c) Prohibitions on injection. An owner or oper-
ator of a well authorized by rule pursuant to this
section is prohibited from injecting into the well:
(1) Upon the effective date of an applicable per-
mit denial;
(2) Upon failure to submit a permit application
in a timely manner pursuant to § 144.25 or
§144.31;
(3) Upon failure to submit inventory informa-
tion in a timely manner pursuant to § 144.26;
(4) Upon failure to comply with a request for
information in a timely manner pursuant to
§ 144.27;
(5) Upon failure to provide alternative financial
assurance pursuant to § 144.28(d)(7);
(6) Forty-eight hours after receipt of a deter-
mination by the Director pursuant to § 144.28(f)(3)
that the well lacks mechanical integrity, unless the
Director requires immediate cessation;
(7) Upon receipt of notification from the Direc-
tor pursuant to § 144.28(1) that the transferee has
not demonstrated financial responsibility pursuant
to § 144.28(d);
(8) For Class I and III wells:
(i) In States with approved programs, five years
after the effective date of the UIC program unless
a timely and complete permit application is pend-
ing the Director's decision; or
(ii) In States with programs administered by
EPA, one year after the effective date of the UIC
program unless a timely and complete permit ap-
plication is pending the Director's decision; or
(9) For Class II wells (except enhanced recov-
ery and hydrocarbon storage), five years after the
effective date of the UIC program unless a timely
and complete permit application is pending the Di-
rector's decision.
(d) Class II and III wells in existing fields or
projects. Notwithstanding the prohibition in
§144.11, this section authorizes Class II and Class
III wells or projects in existing fields or projects
to continue normal operations until permitted, in-
cluding construction, operation, and plugging and
abandonment of wells as part of the operation,
provided the owner or operator maintains compli-
ance with all applicable requirements.
11
-------
§144.22
(e) Requirements. The owner or operator of a
well authorized under this section shall comply
with the applicable requirements of § 144.28 and
part 147 of this chapter no later than one year
after authorization.
[48 FR 14189, Apr. 1, 1983, as amended at 49 FR 20181,
May 11, 1984; 58 FR 63895, Dec. 3, 1993]
§144.22 Existing Class II enhanced re-
covery and hydrocarbon storage
wells.
(a) An existing Class II enhanced recovery or
hydrocarbon storage injection well is authorized
by rule for the life of the well or project, if the
owner or operator injects into the existing well
within one year after the date which a UIC pro-
gram authorized under the SDWA becomes effec-
tive for the first time or inventories the well pur-
suant to the requirements of § 144.26. An owner
or operator of a well which is authorized by rule
pursuant to this section shall rework, operate,
maintain, convert, plug, abandon or inject into the
well in compliance with applicable regulations.
(b) Duration of well authorization by rule. Well
authorization under this section expires upon the
effective date of a permit issued pursuant to
§§144.25, 144.31, 144.33 or §144.34; after plug-
ging and abandonment in accordance with an ap-
proved plugging and abandonment plan pursuant
to §§144.28(c) and 146.10 of this chapter, and
upon submission of a plugging and abandonment
report pursuant to § 144.28(k); or upon conversion
in compliance with § 144.28(j).
(c) Prohibitions on injection. An owner or oper-
ator of a well authorized by rule pursuant to this
section is prohibited from injecting into the well:
(1) Upon the effective date of an applicable per-
mit denial;
(2) Upon failure to submit a permit application
in a timely manner pursuant to § 144.25 or
§144.31;
(3) Upon failure to submit inventory informa-
tion in a timely manner pursuant to § 144.26;
(4) Upon failure to comply with a request for
information in a timely manner pursuant to
§ 144.27;
(5) Upon failure to provide alternative financial
assurance pursuant to § 144.28(d)(7);
(6) Forty-eight hours after receipt of a deter-
mination by the Director pursuant to § 144.28(f)(3)
that the well lacks mechanical integrity, unless the
Director requires immediate cessation; or
(7) Upon receipt of notification from the Direc-
tor pursuant to § 144.28(1) that the transferee has
not demonstrated financial responsibility pursuant
to § 144.28(d).
(d) Requirements. The owner or operator of a
well authorized under this section shall comply
with the applicable requirements of § 144.28 and
part 147 of this chapter. Such owner or operator
shall comply with the casing and cementing re-
quirements no later than 3 years and other require-
ments no later than 1 year after authorization.
[49 FR 20181, May 11, 1984, as amended at 58 FR
63896, Dec. 3, 1993]
§144.23 Class IV wells.
(a) Injection into existing Class IV wells is au-
thorized for up to six months after approval or
promulgation of the UIC Program. Such wells are
subject to the requirements of §144.13 and
§144.14(c).
(b) Closure. For EPA administered programs
only,
(1) Prior to abandoning any Class IV well, the
owner or operator shall plug or otherwise close the
well in a manner acceptable to the Regional Ad-
ministrator.
(2) [Reserved]
(3) The owner or operator of a Class IV well
must notify the Regional Administrator of intent to
abandon the well at least thirty days prior to aban-
donment.
[49 FR 20181, May 11, 1984, as amended at 60 FR
33932, June 29, 1995]
§144.24 Class V wells.
(a) A Class V injection well is authorized by
rule until further requirements under future regula-
tions become applicable.
(b) Duration of well authorization by rule. Well
authorization under this section expires upon the
effective date of a permit issued pursuant to
§§144.25, 144.31, 144.33 or §144.34, or upon
proper closure of the well.
(c) Prohibition of injection. An owner or opera-
tor of a well which is authorized by rule pursuant
to this section is prohibited from injecting into the
well:
(1) Upon the effective date of an applicable per-
mit denial;
(2) Upon failure to submit a permit application
in a timely manner pursuant to § 144.25 or
§144.31;
(3) Upon failure to submit inventory informa-
tion in a timely manner pursuant to § 144.26; or
(4) Upon failure to comply with a request for
information in a timely manner pursuant to
§ 144.27.
[58 FR 63896, Dec. 3, 1993]
§ 144.25 Requiring a permit.
(a) The Director may require the owner or oper-
ator of any Class I, II, III or V injection well
which is authorized by rule under this subpart to
apply for and obtain an individual or area UIC
12
-------
§144.26
permit. Cases where individual or area UIC per-
mits may be required include:
(1) The injection well is not in compliance with
any requirement of the rule;
NOTE: Any underground injection which violates any
authorization by rule is subject to appropriate enforcement
action.
(2) The injection well is not or no longer is
within the category of wells and types of well op-
erations authorized in the rule;
(3) The protection of USDWs requires that the
injection operation be regulated by requirements,
such as for corrective action, monitoring and re-
porting, or operation, which are not contained in
the rule.
(4) When the injection well is a Class I, II (ex-
cept existing enhanced recovery and hydrocarbon
storage) or III well, in accordance with a schedule
established by the Director pursuant to § 144.31(c).
(b) For EPA-administered programs, the Re-
gional Administrator may require an owner or op-
erator of any well which is authorized by rule
under this subpart to apply for an individual or
area UIC permit under this paragraph only if the
owner or operator has been notified in writing that
a permit application is required. The owner or op-
erator of a well which is authorized by rule under
this subpart is prohibited from injecting into the
well upon the effective date of permit denial, or
upon failure by the owner or operator to submit an
application in a timely manner as specified in the
notice. The notice shall include: a brief statement
of the reasons for requiring a permit; an applica-
tion form; a statement setting a time for the owner
or operator to file the application; and a statement
of the consequences of denial or issuance of the
permit, or failure to submit an application, as de-
scribed in this paragraph.
(c) An owner or operator of a well authorized
by rule may request to be excluded from the cov-
erage of this subpart by applying for an individual
or area UIC permit. The owner or operator shall
submit an application under § 144.31 with reasons
supporting the request, to the Director. The Direc-
tor may grant any such requests.
[48 FR 14189, Apr. 1, 1983, as amended at 49 FR 20182,
May 11, 1984; 58 FR 63896, Dec. 3, 1993]
§ 144.26 Inventory requirements.
The owner or operator of an injection well
which is authorized by rule under this subpart
shall submit inventory information to the Director.
Such an owner or operator is prohibited from in-
jecting into the well upon failure to submit inven-
tory information for the well within the time spec-
ified in paragraph (d) or (e) of this section.
(a) Contents. As part of the inventory, the Di-
rector shall require and the owner/operator shall
provide at least the following information:
(1) Facility name and location;
(2) Name and address of legal contact;
(3) Ownership of facility;
(4) Nature and type of injection wells; and
(5) Operating status of injection wells.
NOTE: This information is requested on national form
"Inventory of Injection Wells," OMB No. 158-R0170.
(b) Additional contents. For EPA administered
programs only, the owner or operator of a well
listed in paragraph (b)(l) of this section shall pro-
vide the information listed in paragraph (b)(2) of
this section.
(1) This section applies to the following wells:
(i) Class II enhanced recovery wells;
(ii) Class IV wells;
(iii) The following Class V wells:
(A) Sand or other backfill wells [§ 146.5(e)(8)];
(B) Radioactive waste disposal wells
(C) Geothermal energy recovery wells
[§146.5(e)(12)];
(D) Brine return flow wells [§ 146.5(e)(14)];
(E) Wells used in experimental technologies
[§146.5(e)(15)];
(F) Municipal and industrial disposal wells other
than Class I; and
(G) Any other Class V wells at the discretion
of the Regional Administrator.
(2) The owner or operator of a well listed in
paragraph (b)(l) shall provide a listing of all wells
owned or operated setting forth the following in-
formation for each well. (A single description of
wells at a single facility with substantially the
same characteristics is acceptable).
(i) For Class II only, the field name(s);
(ii) Location of each well or project given by
Township, Range, Section, and Quarter-Section, or
by latitude and longitude to the nearest second, ac-
cording to the conventional practice in the State;
(iii) Date of completion of each well;
(iv) Identification and depth of the formation(s)
into which each well is injecting;
(v) Total depth of each well;
(vi) Casing and cementing record, tubing size,
and depth of packer;
(vii) Nature of the injected fluids;
(viii) Average and maximum injection pressure
at the wellhead;
(ix) Average and maximum injection rate; and
(x) Date of the last mechanical integrity test, if
any.
(c) Notice. Upon approval of the UIC Program
in a State, the Director shall notify owners or op-
erators of injection wells of their duty to submit
inventory information. The method of notification
selected by the Director must assure that the own-
ers or operators will be made aware of the inven-
tory requirement.
13
-------
§144.27
(d) Deadlines. Except as provided in paragraph
(e) of this section. (1) The owner or operator of
an injection well shall submit inventory informa-
tion no later than one year after the date of ap-
proval or effective date of the UIC program for
the State. The Director need not require inventory
information from any facility with interim status
under RCRA.
(2) For EPA administered programs the infor-
mation need not be submitted if a complete permit
application is submitted within one year of the ef-
fective data of the UIC program. The owner or op-
erator of Class IV well shall submit inventory in-
formation no later than 60 days after the effective
date of the program.
(e) Deadlines for Class V Wells (EPA-adminis-
tered programs only). (1) The owner or operator
of a Class V well in which injection took place
within one year after the date at which a UIC pro-
gram authorized under the SDWA first became ef-
fective, and who failed to submit inventory for the
well within the time specified in paragraph (d) of
this section may resume injection 90 days after
submittal of the inventory information to the Di-
rector unless the owner or operator receives notice
that injection may not resume or may resume
sooner.
(2) The owner or operator of a Class V well in
which injection started after the first anniversary
date at which a UIC program authorized under the
SDWA became effective, shall submit inventory
information no later than one year after May 2,
1994.
(3) The owner or operator of a Class V well in
which injection will start after May 2, 1994, shall
submit inventory information prior to starting in-
jection.
(4) The owner or operator of a Class V injec-
tion well prohibited from injecting for failure to
submit inventory information for the well within
the time specified in paragraphs (e) (2) and (3) of
this section, may resume injection 90 days after
submittal of the inventory information to the Di-
rector unless the owner or operator receives notice
from the Director that injection may not resume or
may resume sooner.
[48 FR 14189, Apr. 1, 1983, as amended at 49 FR 20182,
May 11, 1984; 58 FR 63896, Dec. 3, 1993]
§ 144.27 Requiring other information.
(a) For EPA administered programs only, in ad-
dition to the inventory requirements of § 144.26,
the Regional Administrator may require the owner
or operator of any well authorized by rule under
this subpart to submit information as deemed nec-
essary by the Regional Administrator to determine
whether a well may be endangering an under-
ground source of drinking water in violation of
§144.12 of this part.
(b) Such information requirements may include,
but are not limited to:
(1) Performance of ground-water monitoring
and the periodic submission of reports of such
monitoring;
(2) An analysis of injected fluids, including
periodic submission of such analyses; and
(3) A description of the geologic strata through
and into which injection is taking place.
(c) Any request for information under this sec-
tion shall be made in writing, and include a brief
statement of the reasons for requiring the informa-
tion. An owner or operator shall submit the infor-
mation within the time period(s) provided in the
notice.
(d) An owner or operator of an injection well
authorized by rule under this subpart is prohibited
from injecting into the well upon failure of the
owner or operator to comply with a request for in-
formation within the time period(s) specified by
the Director pursuant to paragraph (c) of this sec-
tion. An owner or operator of a well prohibited
from injection under this section shall not resume
injection except under a permit issued pursuant to
§§144.25, 144.31, 144.33 or 144.34.
[49 FR 20182, May 11, 1984, as amended at 58 FR
63896, Dec. 3, 1993]
§144.28 Requirements for Class I, II,
and III wells authorized by rule.
The following requirements apply to the owner
or operator of a Class I, II or III well authorized
by rule under this subpart, as provided by
§§144.21(e) and 144.22(d).
(a) The owner or operator shall comply with all
applicable requirements of this subpart and subpart
B of this part. Any noncompliance with these re-
quirements constitutes a violation of the Safe
Drinking Water Act and is grounds for enforce-
ment action, except that the owner or operator
need not comply with these requirements to the
extent and for the duration such noncompliance is
authorized by an emergency permit under
§ 144.34.
(b) Twenty-four hour reporting. The owner or
operator shall report any noncompliance which
may endanger health or the environment, includ-
ing:
(1) Any monitoring or other information which
indicates that any contaminant may cause an
endangerment to a USDW; or
(2) Any noncompliance or malfunction of the
injection system which may cause fluid migration
into or between USDWs.
Any information shall be provided orally within
24 hours from the time the owner or operator be-
comes aware of the circumstances. A written sub-
mission shall also be provided within five days of
the time the owner or operator becomes aware of
14
-------
§144.28
the circumstances. The written submission shall
contain a description of the noncompliance and its
cause, the period of noncompliance, including
exact dates and times, and if the noncompliance
has not been corrected, the anticipated time it is
expected to continue; and steps taken or planned
to reduce, eliminate, and prevent recurrence of the
noncompliance.
(c) Plugging and abandonment plan. (1) The
owner or operator shall prepare, maintain, and
comply with a plan for plugging and abandonment
of the well or project that meets the requirements
of § 146.10 of this chapter and is acceptable to the
Director. For purposes of this paragraph, tem-
porary intermittent cessation of injection oper-
ations is not abandonment.
(2) For EPA administered programs:
(i) The owner or operator shall submit the plan,
on a form provided by the Regional Administrator,
no later than one year after the effective date of
the UIC program in the state.
(ii) The owner or operator shall submit any pro-
posed significant revision to the method of plug-
ging reflected in the plan no later than the notice
of plugging required by § 144.28(j)(2) (i.e., 45
days prior to plugging unless shorter notice is ap-
proved).
(iii) The plan shall include the following infor-
mation:
(A) The nature and quantity and material to be
used in plugging;
(B) The location and extent (by depth) of the
plugs;
(C) Any proposed test or measurement to be
made;
(D) The amount, size, and location (by depth)
of casing to be left in the well;
(E) The method and location where casing is to
be parted; and
(F) [Reserved]
(G) The estimated cost of plugging the well.
(iv) After a cessation of operations of two years
the owner or operator shall plug and abandon the
well in accordance with the plan unless he:
(A) Provides notice to the Regional Adminis-
trator;
(B) Describe actions or procedures, satisfactory
to the Regional Administrator, that the owner or
operator will take to ensure that the well will not
endanger USDWs during the period of temporary
abandonment. These actions and procedures shall
include compliance with the technical require-
ments applicable to active injection wells unless
waived by the Regional Administrator.
(v) The owner or operator of any well that has
been temporarily abandoned [ceased operations for
more than two years and has met the requirements
of paragraphs (c)(2) (A) and (B) of this section]
shall notify the Regional Administrator prior to re-
suming operation of the well.
(d) Financial responsibility. (1) The owner, op-
erator and/or, for EPA-administered programs, the
transferor of a Class I, II or III well, is required
to demonstrate and maintain financial responsibil-
ity and resources to close, plug and abandon the
underground injection operation in a manner pre-
scribed by the Director until:
(i) The well has been plugged and abandoned in
accordance with an approved plugging and aban-
donment plan pursuant to §§ 144.28(c) and 146.10
and submission of a plugging and abandonment
report has been made pursuant to § 144.28(k);
(ii) The well has been converted in compliance
with the requirements of § 144.28(j); or
(iii) For EPA-administered programs, the trans-
feror has received notice from the Director that the
transferee has demonstrated financial responsibility
for the well. The owner or operator shall show
evidence of such financial responsibility to the Di-
rector by the submission of a surety bond, or other
adequate assurance, such as a financial statement.
(2) For EPA-administered programs, the owner
or operator shall submit such evidence no later
than one year after the effective date of the UIC
program in the State. Where the ownership or
operational control of the well is transferred more
than one year after the effective date of the UIC
program, the transferee shall submit such evidence
no later than the date specified in the notice re-
quired pursuant to § 144.28(1)(2).
(3) For EPA administered programs the Re-
gional Administrator may require the owner or op-
erator to submit a revised demonstration of finan-
cial responsibility if the Regional Administrator
has reason to believe that the original demonstra-
tion is no longer adequate to cover the cost of
closing, plugging and abandoning the well.
(4) For EPA administered programs the owner
or operator of a well injecting hazardous waste
must comply with the financial responsibility re-
quirements of subpart F of this part.
(5) For EPA-administered programs, an owner
or operator must notify the Regional Administrator
by certified mail of the commencement of any
voluntary or involuntary proceeding under Title 11
(Bankruptcy) of the United States Code which
names the owner or operator as debtor, within 10
business days after the commencement of the pro-
ceeding. Any party acting as guarantor for the
owner or operator for the purpose of financial re-
sponsibility must so notify the Regional Adminis-
trator, if the guarantor is named as debtor in any
such proceeding.
(6) In the event of commencement of a proceed-
ing specified in paragraph (d)(5) of this section, an
owner or operator who has furnished a financial
statement for the purpose of demonstrating fman-
15
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§144.28
cial responsibility under this section shall be
deemed to be in violation of this paragraph until
an alternative financial assurance demonstration
acceptable to the Regional Administrator is pro-
vided either by the owner or operator or by its
trustee in bankruptcy, receiver, or other authorized
party. All parties shall be prohibited from injecting
into the well until such alternate financial assur-
ance is provided.
(e) Casing and cementing requirements. For en-
hanced recovery and hydrocarbon storage wells:
(1) The owner or operator shall case and cement
the well to prevent movement of fluids into or be-
tween underground sources of drinking water. In
determining and specifying casing and cementing
requirements, the following factors shall be con-
sidered:
(i) Depth to the injection zone;
(ii) Depth to the bottom of all USDWs; and
(iii) Estimated maximum and average injection
pressures.
(2) In addition, in determining and specifying
casing and cementing requirements the Director
may consider information on:
(i) Nature of formation fluids;
(ii) Lithology of injection and confining zones;
(iii) External pressure, internal pressure, and
axial loading;
(iv) Hole size;
(v) Size and grade of all casing strings; and
(vi) Class of cement.
(3) The requirements in paragraphs (e) (1) and
(2) of this section need not apply if:
(i) Regulatory controls for casing and cementing
existed at the time of drilling of the well and the
well is in compliance with those controls; and
(ii) Well injection will not result in the move-
ment of fluids into an underground source of
drinking water so as to create a significant risk to
the health of persons.
(4) When a State did not have regulatory con-
trols for casing and cementing prior to the time of
the submission of the State program to the Admin-
istrator, the Director need not apply the casing and
cementing requirements in paragraph (e)(l) of this
section if he submits as a part of his application
for primacy, an appropriate plan for casing and ce-
menting of existing, newly converted, and newly
drilled wells in existing fields, and the Adminis-
trator approves the plan.
(f) Operating requirements. (1) Injection be-
tween the outermost casing protecting underground
sources of drinking water and the well bore is pro-
hibited.
(2) The owner or operator of a Class I, II or III
injection well authorized by rule shall establish
and maintain mechanical integrity as defined in
§146.8 of this chapter until the well is properly
plugged in accordance with an approved plugging
and abandonment plan pursuant to §§ 144.28(c)
and 146.10, and a plugging and abandonment re-
port pursuant to § 144.28(k) is submitted, or until
the well is converted in compliance with
§ 144.28(j). For EPA-administered programs, the
Regional Administrator may require by written no-
tice that the owner or operator comply with a
schedule describing when mechanical integrity
demonstrations shall be made.
(3) When the Director determines that a Class
I (non-hazardous), II or III injection well lacks
mechanical integrity pursuant to § 146.8 of this
chapter, the Director shall give written notice of
his determination to the owner or operator. Unless
the Director requires immediate cessation, the
owner or operator shall cease injection into the
well within 48 hours of receipt of the Director's
determination. The Director may allow plugging of
the well in accordance with the requirements of
§146.10 of this chapter, or require the owner or
operator to perform such additional construction,
operation, monitoring, reporting and corrective ac-
tion as is necessary to prevent the movement of
fluid into or between USDWs caused by the lack
of mechanical integrity. The owner or operator
may resume injection upon receipt of written noti-
fication from the Director that the owner or opera-
tor has demonstrated mechanical integrity pursuant
to § 146.8 of this chapter.
(4) The Director may allow the owner or opera-
tor of a well which lacks mechanical integrity pur-
suant to § 146.8(a)(l) of this chapter to continue or
resume injection if the owner or operator has
made a satisfactory demonstration that there is no
movement of fluid into or between USDWs.
(5) For Class I wells, unless an alternative to a
packer has been approved under § 146.12(c) of this
chapter, the owner or operator shall fill the annu-
lus between the tubing and the long string of cas-
ings with a fluid approved by the Director and
maintain a pressure, also approved by the Director,
on the annulus. For EPA administered programs,
the owner or operator of a Class I well completed
with tubing and packer shall fill the annulus be-
tween tubing and casing with a noncorrosive fluid
and maintain a positive pressure on the annulus.
For other Class I wells, the owner or operator
shall insure that the alternative completion method
will reliably provide a comparable level of protec-
tion to underground sources of drinking water.
(6) Injection pressure.
(i) For Class I and III wells:
(A) Except during stimulation, the owner or op-
erator shall not exceed an injection pressure at the
wellhead which shall be calculated so as to assure
that the pressure during injection does not initiate
new fractures or propagate existing fractures in the
injection zone; and
16
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§144.28
(B) The owner or operator shall not inject at a
pressure which will initiate fractures in the confin-
ing zone or cause the movement of injection or
formation fluids into an underground source of
drinking water.
(ii) For Class II wells:
(A) The owner or operator shall not exceed a
maximum injection pressure at the wellhead which
shall be calculated so as to assure that the pressure
during injection does not initiate new fractures of
propagate existing fractures in the confining zone
adjacent to the USDWs; and
(B) The owner or operator shall not inject at a
pressure which will cause the movement of injec-
tion or formation fluids into an underground
source of drinking water.
(g) Monitoring requirements. The owner or op-
erator shall perform the monitoring as described in
this paragraph. For EPA administered programs,
monitoring of the nature of the injected fluids
shall comply with applicable analytical methods
cited and described in table I of 40 CFR 136.3 or
in appendix III of 40 CFR part 261 or by other
methods that have been approved by the Regional
Administrator.
(1) The owner or operator of a Class I well
shall:
(i) Analyze the nature of the injected fluids with
sufficient frequency to yield data representative of
their characteristics;
(ii) Install and use continuous recording devices
to monitor injection pressure, flow rate and vol-
ume, and the pressure on the annulus between the
tubing and the long string of casing;
(iii) Install and use monitoring wells within the
area of review if required by the Director, to mon-
itor any migration of fluids into and pressure in
the underground sources of drinking water. The
type, number and location of the wells, the param-
eters to be measured, and the frequency of mon-
itoring must be approved by the Director.
(2) For Class II wells:
(i) The owner or operator shall monitor the na-
ture of the injected fluids with sufficient frequency
to yield data representative of their characteristics.
For EPA administered programs, this frequency
shall be at least once within the first year of the
authorization and thereafter when changes are
made to the fluid.
(ii) The owner or operator shall observe the in-
jection pressure, flow rate, and cumulative volume
at least with the following frequencies:
(A) Weekly for produced fluid disposal oper-
ations;
(B) Monthly for enhanced recovery operations;
(C) Daily during the injection of liquid hydro-
carbons and injection for withdrawal of stored hy-
drocarbons; and
(D) Daily during the injection phase of cyclic
steam operations.
(iii) The owner or operator shall record one ob-
servation of injection pressure, flow rate and cu-
mulative volume at reasonable intervals no greater
than thirty days.
(iv) For enhanced recovery and hydrocarbon
storage wells:
(A) The owner or operator shall demonstrate
mechanical integrity pursuant to § 146.8 of this
chapter at least once every five years during the
life of the injection well.
(B) For EPA administered programs, the Re-
gional Administrator by written notice may require
the owner or operator to comply with a schedule
describing when such demonstrations shall be
made.
(C) For EPA administered programs, the owner
or operator of any well required to be tested for
mechanical integrity shall notify the Regional Ad-
ministrator at least 30 days prior to any required
mechanical integrity test. The Regional Adminis-
trator may allow a shorter notification period if it
would be sufficient to enable EPA to witness the
mechanical integrity testing if it chose. Notifica-
tion may be in the form of a yearly or quarterly
schedule of planned mechanical integrity tests, or
it may be on an individual basis.
(v) The owner or operator of a hydrocarbon
storage or enhanced recovery wells may monitor
them by manifold monitoring on a field or project
basis rather than on an individual well basis if
such facilities consist of more than one injection
well, operate with a common manifold, and pro-
vided the owner or operator demonstrates to the
Director that manifold monitoring is comparable to
individual well monitoring.
(3)(i) For Class III wells the owner or operator
shall provide to the Director a qualitative analysis
and ranges in concentrations of all constituents of
injected fluids at least once within the first year of
authorization and thereafter whenever the injection
fluid is modified to the extent that the initial data
are incorrect or incomplete. The owner or operator
may request Federal confidentiality as specified in
40 CFR part 2. If the information is proprietary
the owner or operator may in lieu of the ranges in
concentrations choose to submit maximum con-
centrations which shall not be exceeded. In such
a case the owner or operator shall retain records
of the undisclosed concentrations and provide
them upon request to the Regional Administrator
as part of any enforcement investigation; and
(ii) Monitor injection pressure and either flow
rate or volume semi-monthly, or meter and record
daily injected and produced fluid volumes as ap-
propriate;
(iii) Monitor the fluid level in the injection zone
semi-monthly, where appropriate;
17
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§144.28
(iv) All Class III wells may be monitored on a
field or project basis rather than an individual well
basis by manifold monitoring. Manifold monitor-
ing may be used in cases of facilities consisting of
more than one injection well, operating with a
common manifold. Separate monitoring systems
for each well are not required provided the owner
or operator demonstrates to the Director that mani-
fold monitoring is comparable to individual well
monitoring.
(h) Reporting requirements. The owner or oper-
ator shall submit reports to the Director as fol-
lows:
(1) For Class I wells, quarterly reports on:
(i) The physical, chemical, and other relevant
characteristics of the injection fluids;
(ii) Monthly average, maximum, and minimum
values for injection pressure, flow rate and vol-
ume, and annular pressure;
(iii) The results from ground-water monitoring
wells prescribed in paragraph (g)(l)(iii) of this
section;
(iv) The results of any test of the injection well
conducted by the owner or operator during the re-
ported quarter if required by the Director; and
(v) Any well work over performed during the
reported quarter.
(2) For Class II wells:
(i) An annual report to the Director summariz-
ing the results of all monitoring, as required in
paragraph (g)(2) of this section. Such summary
shall include monthly records of injected fluids,
and any major changes in characteristics or
sources of injected fluids. Previously submitted in-
formation may be included by reference.
(ii) The owner or operator of hydrocarbon stor-
age and enhanced recovery projects may report on
a field or project basis rather than on an individual
well basis where manifold monitoring is used.
(3) For Class III wells:
(i) Quarterly reporting on all monitoring, as re-
quired in paragraph (g)(3) of this section;
(ii) Quarterly reporting of the results of any
periodic tests required by the Director that are per-
formed during the reported quarter;
(iii) Monitoring may be reported on a project or
field basis rather than an individual well basis
where manifold monitoring is used.
(i) Retention of records. The owner or operator
shall retain records of all monitoring information,
including the following:
(1) Calibration and maintenance records and all
original strip chart recordings for continuous mon-
itoring instrumentation, and copies of all reports
required by this section, for a period of at least
three years from the date of the sample, measure-
ment, or report. This period may be extended by
request of the Director at any time; and
(2) The nature and composition of all injected
fluids until three years after the completion of any
plugging and abandonment procedures specified
under § 144.52(1)(6). The Director may require the
owner or operator to deliver the records to the Di-
rector at the conclusion of the retention period.
For EPA administered programs, the owner or op-
erator shall continue to retain the records after the
three year retention period unless he delivers the
records to the Regional Administrator or obtains
written approval from the Regional Administrator
to discard the records.
(j) Notice of abandonment. (1) The owner or
operator shall notify the Director, according to a
time period required by the Director, before con-
version or abandonment of the well.
(2) For EPA-administered programs, the owner
or operator shall notify the Regional Administrator
at least 45 days before plugging and abandonment.
The Regional Administrator, at his discretion, may
allow a shorter notice period.
(k) Plugging and abandonment report. For
EPA-administered programs, within 60 days after
plugging a well or at the time of the next quarterly
report (whichever is less) the owner or operator
shall submit a report to the Regional Adminis-
trator. If the quarterly report is due less than 15
days before completion of plugging, then the re-
port shall be submitted within 60 days. The report
shall be certified as accurate by the person who
performed the plugging operation. Such report
shall consist of either:
(1) A statement that the well was plugged in ac-
cordance with the plan previously submitted to the
Regional Administrator; or
(2) Where actual plugging differed from the
plan previously submitted, an updated version of
the plan, on the form supplied by the Regional
Administrator, specifying the different procedures
used.
(1) Change of ownership or operational control.
For EPA-administered programs:
(1) The transferor of a Class I, II or III well au-
thorized by rule shall notify the Regional Admin-
istrator of a transfer of ownership or operational
control of the well at least 30 days in advance of
the proposed transfer.
(2) The notice shall include a written agreement
between the transferor and the transferee contain-
ing a specific date for transfer of ownership or
operational control of the well; and a specific date
when the financial responsibility demonstration of
§ 144.28(d) will be met by the transferee.
(3) The transferee is authorized to inject unless
he receives notification from the Director that the
transferee has not demonstrated financial respon-
sibility pursuant to § 144.28(d).
(m) Requirements for Class I hazardous waste
wells. The owner or operator of any Class I well
18
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§144.31
injecting hazardous waste shall comply with
§144.14(c). In addition, for EPA-administered
programs the owner or operator shall properly dis-
pose of, or decontaminate by removing all hazard-
ous waste residues, all injection well equipment.
[49 FR 20182, May 11, 1984, as amended at 58 FR
63897, Dec. 3, 1993]
Sub pa it D—Authorization by
Permit
§144.31 Application for a permit; au-
thorization by permit.
(a) Permit application. Unless an underground
injection well is authorized by rule under subpart
C of this part, all injection activities including
construction of an injection well are prohibited
until the owner or operator is authorized by per-
mit. An owner or operator of a well currently au-
thorized by rule must apply for a permit under this
section unless well authorization by rule was for
the life of the well or project. Authorization by
rule for a well or project for which a permit appli-
cation has been submitted terminates for the well
or project upon the effective date of the permit.
Procedures for applications, issuance and adminis-
tration of emergency permits are found exclusively
in § 144.34. A RCRA permit applying the stand-
ards of part 264, subpart C of this chapter will
constitute a UIC permit for hazardous waste injec-
tion wells for which the technical standards in part
146 of this chapter are not generally appropriate.
(b) Who applies? When a facility or activity is
owned by one person but is operated by another
person, it is the operator's duty to obtain a permit.
(c) Time to apply. Any person who performs or
proposes an underground injection for which a
permit is or will be required shall submit an appli-
cation to the Director in accordance with the UIC
program as follows:
(1) For existing wells, as expeditiously as prac-
ticable and in accordance with the schedule in any
program description under § 145.23(f) or (for EPA
administered programs) on a schedule established
by the Regional Administrator, but no later than 4
years from the approval or promulgation of the
UIC program, or as required under § 144.14(b) for
wells injecting hazardous waste. For EPA adminis-
tered programs the owner or operator of Class I or
III wells shall submit a complete permit applica-
tion no later than 1 year after the effective date of
the program.
(2) For new injection wells, except new wells in
projects authorized under § 144.21(d) or authorized
by an existing area permit under § 144.33(c), a
reasonable time before construction is expected to
begin.
(d) Completeness. The Director shall not issue a
permit before receiving a complete application for
a permit except for emergency permits. An appli-
cation for a permit is complete when the Director
receives an application form and any supplemental
information which are completed to his or her sat-
isfaction. The completeness of any application for
a permit shall be judged independently of the sta-
tus of any other permit application or permit for
the same facility or activity. For EPA-administered
programs, an application which is reviewed under
§ 124.3 is complete when the Director receives ei-
ther a complete application or the information list-
ed in a notice of deficiency.
(e) Information requirements. All applicants for
permits shall provide the following information to
the Director, using the application form provided
by the Director.
(1) The activities conducted by the applicant
which require it to obtain permits under RCRA,
UIC, the National Pollution Discharge Elimination
system (NPDES) program under the Clean Water
Act, or the Prevention of Significant Deterioration
(PSD) program under the Clean Air Act.
(2) Name, mailing address, and location of the
facility for which the application is submitted.
(3) Up to four SIC codes which best reflect the
principal products or services provided by the fa-
cility.
(4) The operator's name, address, telephone
number, ownership status, and status as Federal,
State, private, public, or other entity.
(5) Whether the facility is located on Indian
lands.
(6) A listing of all permits or construction ap-
provals received or applied for under any of the
following programs:
(i) Hazardous Waste Management program
under RCRA.
(ii) UIC program under SDWA.
(iii) NPDES program under CWA.
(iv) Prevention of Significant Deterioration
(PSD) program under the Clean Air Act.
(v) Nonattainment program under the Clean Air
Act.
(vi) National Emission Standards for Hazardous
Pollutants (NESHAPS) preconstruction approval
under the Clean Air Act.
(vii) Ocean dumping permits under the Marine
Protection Research and Sanctuaries Act.
(viii) Dredge and fill permits under section 404
of CWA.
(ix) Other relevant environmental permits, in-
cluding State permits.
(7) A topographic map (or other map if a topo-
graphic map is unavailable) extending one mile
beyond the property boundaries of the source de-
picting the facility and each of its intake and dis-
charge structures; each of its hazardous waste
19
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§144.32
treatment, storage, or disposal facilities; each well
where fluids from the facility are injected under-
ground; and those wells, springs, and other surface
water bodies, and drinking water wells listed in
public records or otherwise known to the applicant
within a quarter mile of the facility property
boundary.
(8) A brief description of the nature of the busi-
ness.
(9) For EPA-administered programs, the appli-
cant shall identify and submit on a list with the
permit application the names and addresses of all
owners of record of land within one-quarter mile
of the facility boundary. This requirement may be
waived by the Regional Administrator where the
site is located in a populous area and the Regional
Administrator determines that the requirement
would be impracticable.
(10) A plugging and abandonment plan that
meets the requirements of § 146.10 of this chapter
and is acceptable to the Director.
(f) Recordkeeping. Applicants shall keep records
of all data used to complete permit applications
and any supplemental information submitted under
§ 144.31 for a period of at least 3 years from the
date the application is signed.
(g) Information Requirements for Class I Haz-
ardous Waste Injection Wells Permits. (1) The fol-
lowing information is required for each active
Class I hazardous waste injection well at a facility
seeking a UIC permit:
(i) Dates well was operated.
(ii) Specification of all wastes which have been
injected in the well, if available.
(2) The owner or operator of any facility con-
taining one or more active hazardous waste injec-
tion wells must submit all available information
pertaining to any release of hazardous waste or
constituents from any active hazardous waste in-
jection well at the facility.
(3) The owner or operator of any facility con-
taining one or more active Class I hazardous waste
injection wells must conduct such preliminary site
investigations as are necessary to determine
whether a release is occurring, has occurred, or is
likely to have occurred.
[48 FR 14189, Apr. 1, 1983, as amended at 49 FR 20185,
May 11, 1984; 52 FR 45797, Dec. 1, 1987; 52 FR 46963,
Dec. 10, 1987; 58 FR 63897, Dec. 3, 1993]
§144.32 Signatories to permit applica-
tions and reports.
(a) Applications. All permit applications, except
those submitted for Class II wells (see paragraph
(b) of this section), shall be signed as follows:
(1) For a corporation: by a responsible cor-
porate officer. For the purpose of this section, a
responsible corporate officer means; (i) A presi-
dent, secretary, treasurer, or vice president of the
corporation in charge of a principal business func-
tion, or any other person who performs similar
policy- or decisionmaking functions for the cor-
poration, or (ii) the manager of one or more manu-
facturing, production, or operating facilities em-
ploying more than 250 persons or having gross an-
nual sales or expenditures exceeding $25 million
(in second-quarter 1980 dollars), if authority to
sign documents has been assigned or delegated to
the manager in accordance with corporate proce-
dures.
NOTE: EPA does not require specific assignments or
delegations of authority to responsible corporate officers
identified in § 144.32(a)(l)(i). The Agency will presume
that these responsible corporate officers have the requisite
authority to sign permit applications unless the corpora-
tion has notified the Director to the contrary. Corporate
procedures governing authority to sign permit applications
may provide for assignment or delegation to applicable
corporate positions under § 144.32(a)(l)(ii) rather than to
specific individuals.
(2) For a partnership or sole proprietorship: by
a general partner or the proprietor, respectively; or
(3) For a municipality, State, Federal, or other
public agency: by either a principal executive offi-
cer or ranking elected official. For purposes of this
section, a principal executive officer of a Federal
agency includes: (i) The chief executive officer of
the agency, or (ii) a senior executive officer hav-
ing responsibility for the overall operations of a
principal geographic unit of the agency (e.g., Re-
gional Administrators of EPA).
(b) Reports. All reports required by permits,
other information requested by the Director, and
all permit applications submitted for Class II wells
under §144.31 shall be signed by a person de-
scribed in paragraph (a) of this section, or by a
duly authorized representative of that person. A
person is a duly authorized representative only if:
(1) The authorization is made in writing by a
person described in paragraph (a) of this section;
(2) The authorization specifies either an individ-
ual or a position having responsibility for the
overall operation of the regulated facility or activ-
ity, such as the position of plant manager, operator
of a well or a well field, superintendent, or posi-
tion of equivalent responsibility. (A duly author-
ized representative may thus be either a named in-
dividual or any individual occupying a named po-
sition); and
(3) The written authorization is submitted to the
Director.
(c) Changes to authorization. If an authorization
under paragraph (b) of this section is no longer ac-
curate because a different individual or position
has responsibility for the overall operation of the
facility, a new authorization satisfying the require-
ments of paragraph (b) of this section must be
submitted to the Director prior to or together with
20
-------
§144.34
any reports, information, or applications to be
signed by an authorized representative.
(d) Certification. Any person signing a docu-
ment under paragraph (a) or (b) of this section
shall make the following certification:
I certify under penalty of law that this document and
all attachments were prepared under my direction or su-
pervision in accordance with a system designed to assure
that qualified personnel properly gather and evaluate the
information submitted. Based on my inquiry of the person
or persons who manage the system, or those persons di-
rectly responsible for gathering the information, the infor-
mation submitted is, to the best of my knowledge and be-
lief, true, accurate, and complete. I am aware that there
are significant penalties for submitting false information,
including the possibility of fine and imprisonment for
knowing violations.
(Clean Water Act (33 U.S.C. 1251 et seq.), Safe Drinking
Water Act (42 U.S.C. 300f et seq.), Clean Air Act (42
U.S.C. 7401 et seq.), Resource Conservation and Recov-
ery Act (42 U.S.C. 6901 et seq.))
[48 FR 14189, Apr. 1, 1983, as amended at 48 FR 39621,
Sept. 1, 1983]
§144.33 Area permits.
(a) The Director may issue a permit on an area
basis, rather than for each well individually, pro-
vided that the permit is for injection wells:
(1) Described and identified by location in per-
mit application(s) if they are existing wells, except
that the Director may accept a single description
of wells with substantially the same characteris-
tics;
(2) Within the same well field, facility site, res-
ervoir, project, or similar unit in the same State;
(3) Operated by a single owner or operator; and
(4) Used to inject other than hazardous waste.
(b) Area permits shall specify:
(1) The area within which underground injec-
tions are authorized, and
(2) The requirements for construction, monitor-
ing, reporting, operation, and abandonment, for all
wells authorized by the permit.
(c) The area permit may authorize the permittee
to construct and operate, convert, or plug and
abandon wells within the permit area provided:
(1) The permittee notifies the Director at such
time as the permit requires;
(2) The additional well satisfies the criteria in
paragraph (a) of this section and meets the re-
quirements specified in the permit under paragraph
(b) of this section; and
(3) The cumulative effects of drilling and oper-
ation of additional injection wells are considered
by the Director during evaluation of the area per-
mit application and are acceptable to the Director.
(d) If the Director determines that any well con-
structed pursuant to paragraph (c) of this section
does not satisfy any of the requirements of para-
graphs (c) (1) and (2) of this section the Director
may modify the permit under § 144.39, terminate
under § 144.40, or take enforcement action. If the
Director determines that cumulative effects are un-
acceptable, the permit may be modified under
§ 144.39.
§ 144.34 Emergency permits.
(a) Coverage. Notwithstanding any other provi-
sion of this part or part 124, the Director may
temporarily permit a specific underground injec-
tion if:
(1) An imminent and substantial endangerment
to the health of persons will result unless a tem-
porary emergency permit is granted; or
(2) A substantial and irretrievable loss of oil or
gas resources will occur unless a temporary emer-
gency permit is granted to a Class II well; and
(i) Timely application for a permit could not
practicably have been made; and
(ii) The injection will not result in the move-
ment of fluids into underground sources of drink-
ing water; or
(3) A substantial delay in production of oil or
gas resources will occur unless a temporary emer-
gency permit is granted to a new Class II well and
the temporary authorization will not result in the
movement of fluids into an underground source of
drinking water.
(b) Requirements for issuance. (1) Any tem-
porary permit under paragraph (a)(l) of this sec-
tion shall be for no longer term than required to
prevent the hazard.
(2) Any temporary permit under paragraph
(a)(2) of this section shall be for no longer than
90 days, except that if a permit application has
been submitted prior to the expiration of the 90-
day period, the Director may extend the temporary
permit until final action on the application.
(3) Any temporary permit under paragraph
(a)(3) of this section shall be issued only after a
complete permit application has been submitted
and shall be effective until final action on the ap-
plication.
(4) Notice of any temporary permit under this
paragraph shall be published in accordance with
§124.11 within 10 days of the issuance of the per-
mit.
(5) The temporary permit under this section
may be either oral or written. If oral, it must be
followed within 5 calendar days by a written tem-
porary emergency permit.
(6) The Director shall condition the temporary
permit in any manner he or she determines is nec-
essary to ensure that the injection will not result
in the movement of fluids into an underground
source of drinking water.
[48 FR 14189, Apr. 1, 1983, as amended at 49 FR 20185,
May 11, 1984]
21
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§144.35
§ 144.35 Effect of a permit.
(a) Except for Class II and III wells, compliance
with a permit during its term constitutes compli-
ance, for purposes of enforcement, with Part C of
the SDWA. However, a permit may be modified,
revoked and reissued, or terminated during its term
for cause as set forth in §§ 144.39 and 144.40.
(b) The issuance of a permit does not convey
any property rights of any sort, or any exclusive
privilege.
(c) The issuance of a permit does not authorize
any injury to persons or property or invasion of
other private rights, or any infringement of State
or local law or regulations.
§144.36 Duration of permits.
(a) Permits for Class I and Class V wells shall
be effective for a fixed term not to exceed 10
years. UIC permits for Class II and III wells shall
be issued for a period up to the operating life of
the facility. The Director shall review each issued
Class II or III well UIC permit at least once every
5 years to determine whether it should be modi-
fied, revoked and reissued, terminated, or a minor
modification made as provided in §§ 144.39,
144.40, and 144.41.
(b) Except as provided in § 144.37, the term of
a permit shall not be extended by modification be-
yond the maximum duration specified in this sec-
tion.
(c) The Director may issue any permit for a du-
ration that is less than the full allowable term
under this section.
§144.37 Continuation of expiring per-
mits.
(a) EPA permits. When EPA is the permit-issu-
ing authority, the conditions of an expired permit
continue in force under 5 U.S.C. 558(c) until the
effective date of a new permit if:
(1) The permittee has submitted a timely appli-
cation which is a complete application for a new
permit; and
(2) The Regional Administrator, through no
fault of the permittee does not issue a new permit
with an effective date on or before the expiration
date of the previous permit (for example, when is-
suance is impracticable due to time or resource
constraints).
(b) Effect. Permits continued under this section
remain fully effective and enforceable.
(c) Enforcement. When the permittee is not in
compliance with the conditions of the expiring or
expired permit the Regional Administrator may
choose to do any or all of the following:
(1) Initiate enforcement action based upon the
permit which has been continued;
(2) Issue a notice of intent to deny the new per-
mit. If the permit is denied, the owner or operator
would then be required to cease the activities au-
thorized by the continued permit or be subject to
enforcement action for operating without a permit;
(3) Issue a new permit under part 124 with ap-
propriate conditions; or
(4) Take other actions authorized by these regu-
lations.
(d) State continuation. An EPA issued permit
does not continue in force beyond its time expira-
tion date under Federal law if at that time a State
is the permitting authority. A State authorized to
administer the UIC program may continue either
EPA or State-issued permits until the effective
date of the new permits, if State law allows. Oth-
erwise, the facility or activity is operating without
a permit from the time of expiration of the old
permit to the effective date of the State-issued new
permit.
§ 144.38 Transfer of permits.
(a) Transfers by modification. Except as pro-
vided in paragraph (b) of this section, a permit
may be transferred by the permittee to a new
owner or operator only if the permit has been
modified or revoked and reissued (under
§ 144.39(b)(2)), or a minor modification made
(under § 144.41(d)), to identify the new permittee
and incorporate such other requirements as may be
necessary under the Safe Drinking Water Act.
(b) Automatic transfers. As an alternative to
transfers under paragraph (a) of this section, any
UIC permit for a well not injecting hazardous
waste may be automatically transferred to a new
permittee if:
(1) The current permittee notifies the Director at
least 30 days in advance of the proposed transfer
date referred to in paragraph (b)(2) of this section;
(2) The notice includes a written agreement be-
tween the existing and new permittees containing
a specific date for transfer or permit responsibility,
coverage, and liability between them, and the no-
tice demonstrates that the financial responsibility
requirements of § 144.52(a)(7) will be met by the
new permittee; and
(3) The Director does not notify the existing
permittee and the proposed new permittee of his
or her intent to modify or revoke and reissue the
permit. A modification under this paragraph may
also be a minor modification under §144.41. If
this notice is not received, the transfer is effective
on the date specified in the agreement mentioned
in paragraph (b)(2) of this section.
§144.39 Modification or revocation
and reisssuance of permits.
When the Director receives any information (for
example, inspects the facility, receives information
submitted by the permittee as required in the per-
mit (see §144.51 of this chapter), receives a re-
22
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§144.40
quest for modification or revocation and
reissuance under § 124.5, or conducts a review of
the permit file) he or she may determine whether
or not one or more of the causes listed in para-
graphs (a) and (b) of this section for modification
or revocation and reissuance or both exist. If cause
exists, the Director may modify or revoke and re-
issue the permit accordingly, subject to the limita-
tions of paragraph (c) of this section, and may re-
quest an updated application if necessary. When a
permit is modified, only the conditions subject to
modification are reopened. If a permit is revoked
and reissued, the entire permit is reopened and
subject to revision and the permit is reissued for
a new term. See §124.5(c)(2) of this chapter. If
cause does not exist under this section or § 144.41
of this chapter, the Director shall not modify or re-
voke and reissue the permit. If a permit modifica-
tion satisfies the criteria in § 144.41 for "minor
modifications" the permit may be modified with-
out a draft permit or public review. Otherwise, a
draft permit must be prepared and other proce-
dures in part 124 must be followed.
(a) Causes for modification. The following are
causes for modification. For Class I hazardous
waste injection wells, Class II, or Class III wells
the following may be causes for revocation and
reissuance as well as modification; and for all
other wells the following may be cause for revoca-
tion or reissuance as well as modification when
the permittee requests or agrees.
(1) Alterations. There are material and substan-
tial alterations or additions to the permitted facility
or activity which occurred after permit issuance
which justify the application of permit conditions
that are different or absent in the existing permit.
(2) Information. The Director has received in-
formation. Permits other than for Class II and III
wells may be modified during their terms for this
cause only if the information was not available at
the time of permit issuance (other than revised
regulations, guidance, or test methods) and would
have justified the application of different permit
conditions at the time of issuance. For UIC area
permits (§ 144.33), this cause shall include any in-
formation indicating that cumulative effects on the
environment are unacceptable.
(3) New regulations. The standards or regula-
tions on which the permit was based have been
changed by promulgation of new or amended
standards or regulations or by judicial decision
after the permit was issued. Permits other than for
Class I hazardous waste injection wells, Class II,
or Class III wells may be modified during their
terms for this cause only as follows:
(i) For promulgation of amended standards or
regulations, when:
(A) The permit condition requested to be modi-
fied was based on a promulgated part 146 regula-
tion; and
(B) EPA has revised, withdrawn, or modified
that portion of the regulation on which the permit
condition was based, and
(C) A permittee requests modification in accord-
ance with §124.5 within ninety (90) days after
FEDERAL REGISTER notice of the action on which
the request is based.
(ii) For judicial decisions, a court of competent
jurisdiction has remanded and stayed EPA promul-
gated regulations if the remand and stay concern
that portion of the regulations on which the permit
condition was based and a request is filed by the
permittee in accordance with § 124.5 within ninety
(90) days of judicial remand.
(4) Compliance schedules. The Director deter-
mines good cause exists for modification of a
compliance schedule, such as an act of God,
strike, flood, or materials shortage or other events
over which the permittee has little or no control
and for which there is no reasonably available
remedy. See also § 144.41(c) (minor modifica-
tions).
(b) Causes for modification or revocation and
reissuance. The following are causes to modify or,
alternatively, revoke and reissue a permit:
(1) Cause exists for termination under § 144.40,
and the Director determines that modification or
revocation and reissuance is appropriate.
(2) The Director has received notification (as re-
quired in the permit, see § 144.41(d)) of a pro-
posed transfer of the permit. A permit also may be
modified to reflect a transfer after the effective
date of an automatic transfer (§ 144.38(b)) but will
not be revoked and reissued after the effective
date of the transfer except upon the request of the
new permittee.
(3) A determination that the waste being in-
jected is a hazardous waste as defined in §261.3
either because the definition has been revised, or
because a previous determination has been
changed.
(c) Facility siting. Suitability of the facility lo-
cation will not be considered at the time of permit
modification or revocation and reissuance unless
new information or standards indicate that a threat
to human health or the environment exists which
was unknown at the time of permit issuance.
[48 FR 14189, Apr. 1, 1983, as amended at 53 FR 28147,
July 26, 1988]
§144.40 Termination of permits.
(a) The Director may terminate a permit during
its term, or deny a permit renewal application for
the following causes:
(1) Noncompliance by the permittee with any
condition of the permit;
23
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§144.41
(2) The permittee's failure in the application or
during the permit issuance process to disclose
fully all relevant facts, or the permittee's misrepre-
sentation of any relevant facts at any time; or
(3) A determination that the permitted activity
endangers human health or the environment and
can only be regulated to acceptable levels by per-
mit modification or termination;
(b) The Director shall follow the applicable pro-
cedures in part 124 in terminating any permit
under this section.
§144.41 Minor modifications of per-
mits.
Upon the consent of the permittee, the Director
may modify a permit to make the corrections or
allowances for changes in the permitted activity
listed in this section, without following the proce-
dures of part 124. Any permit modification not
processed as a minor modification under this sec-
tion must be made for cause and with part 124
draft permit and public notice as required in
§ 144.39. Minor modifications may only:
(a) Correct typographical errors;
(b) Require more frequent monitoring or report-
ing by the permittee;
(c) Change an interim compliance date in a
schedule of compliance, provided the new date is
not more than 120 days after the date specified in
the existing permit and does not interfere with at-
tainment of the final compliance date requirement;
or
(d) Allow for a change in ownership or oper-
ational control of a facility where the Director de-
termines that no other change in the permit is nec-
essary, provided that a written agreement contain-
ing a specific date for transfer of permit respon-
sibility, coverage, and liability between the current
and new permittees has been submitted to the Di-
rector.
(e) Change quantities or types of fluids injected
which are within the capacity of the facility as
permitted and, in the judgment of the Director,
would not interfere with the operation of the facil-
ity or its ability to meet conditions described in
the permit and would not change its classification.
(f) Change construction requirements approved
by the Director pursuant to § 144.52(a)(l) (estab-
lishing UIC permit conditions), provided that any
such alteration shall comply with the requirements
of this part and part 146.
(g) Amend a plugging and abandonment plan
which has been updated under § 144.52(a)(6).
Sub pa it E—Permit Conditions
§144.51 Conditions applicable to all
permits.
The following conditions apply to all UIC per-
mits. All conditions applicable to all permits shall
be incorporated into the permits either expressly or
by reference. If incorporated by reference, a spe-
cific citation to these regulations (or the corre-
sponding approved State regulations) must be
given in the permit.
(a) Duty to comply. The permittee must comply
with all conditions of this permit. Any permit non-
compliance constitutes a violation of the Safe
Drinking Water Act and is grounds for enforce-
ment action; for permit termination, revocation and
reissuance, or modification; or for denial of a per-
mit renewal application; except that the permittee
need not comply with the provisions of this permit
to the extent and for the duration such noncompli-
ance is authorized in an emergency permit under
§ 144.34.
(b) Duty to reapply. If the permittee wishes to
continue an activity regulated by this permit after
the expiration date of this permit, the permittee
must apply for and obtain a new permit.
(c) Need to halt or reduce activity not a de-
fense. It shall not be a defense for a permittee in
an enforcement action that it would have been
necessary to halt or reduce the permitted activity
in order to maintain compliance with the condi-
tions of this permit.
(d) Duty to mitigate. The permittee shall take all
reasonable steps to minimize or correct any ad-
verse impact on the environment resulting from
noncompliance with this permit.
(e) Proper operation and maintenance. The per-
mittee shall at all times properly operate and
maintain all facilities and systems of treatment and
control (and related appurtenances) which are in-
stalled or used by the permittee to achieve compli-
ance with the conditions of this permit. Proper op-
eration and maintenance includes effective per-
formance, adequate funding, adequate operator
staffing and training, and adequate laboratory and
process controls, including appropriate quality as-
surance procedures. This provision requires the op-
eration of back-up or auxiliary facilities or similar
systems only when necessary to achieve compli-
ance with the conditions of the permit.
(f) Permit actions. This permit may be modi-
fied, revoked and reissued, or terminated for
cause. The filing of a request by the permittee for
a permit modification, revocation and reissuance,
or termination, or a notification of planned
24
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§144.51
changes or anticipated noncompliance, does not
stay any permit condition.
(g) Property rights. This permit does not convey
any property rights of any sort, or any exclusive
privilege.
(h) Duty to provide information. The permittee
shall furnish to the Director, within a time speci-
fied, any information which the Director may re-
quest to determine whether cause exists for modi-
fying, revoking and reissuing, or terminating this
permit, or to determine compliance with this per-
mit. The permittee shall also furnish to the Direc-
tor, upon request, copies of records required to be
kept by this permit.
(i) Inspection and entry. The permittee shall
allow the Director, or an authorized representative,
upon the presentation of credentials and other doc-
uments as may be required by law, to:
(1) Enter upon the permittee's premises where
a regulated facility or activity is located or con-
ducted, or where records must be kept under the
conditions of this permit;
(2) Have access to and copy, at reasonable
times, any records that must be kept under the
conditions of this permit;
(3) Inspect at reasonable times any facilities,
equipment (including monitoring and control
equipment), practices, or operations regulated or
required under this permit; and
(4) Sample or monitor at reasonable times, for
the purposes of assuring permit compliance or as
otherwise authorized by the SDWA, any sub-
stances or parameters at any location.
(j) Monitoring and records. (1) Samples and
measurements taken for the purpose of monitoring
shall be representative of the monitored activity.
(2) The permittee shall retain records of all
monitoring information, including the following:
(i) Calibration and maintenance records and all
original strip chart recordings for continuous mon-
itoring instrumentation, copies of all reports re-
quired by this permit, and records of all data used
to complete the application for this permit, for a
period of at least 3 years from the date of the
sample, measurement, report, or application. This
period may be extended by request of the Director
at any time; and
(ii) The nature and composition of all injected
fluids until three years after the completion of any
plugging and abandonment procedures specified
under § 144.52(a)(6), or under part 146 subpart G
as appropriate. The Director may require the
owner or operator to deliver the records to the Di-
rector at the conclusion of the retention period.
For EPA administered programs, the owner or op-
erator shall continue to retain the records after the
three year retention period unless he delivers the
records to the Regional Administrator or obtains
written approval from the Regional Administrator
to discard the records.
(3) Records of monitoring information shall in-
clude:
(i) The date, exact place, and time of sampling
or measurements;
(ii) The individual(s) who performed the sam-
pling or measurements;
(iii) The date(s) analyses were performed;
(iv) The individual(s) who performed the analy-
ses;
(v) The analytical techniques or methods used;
and
(vi) The results of such analyses.
(k) Signatory requirement. All applications, re-
ports, or information submitted to the Adminis-
trator shall be signed and certified. (See § 144.32.)
(1) Reporting requirements. (1) Planned
changes. The permittee shall give notice to the Di-
rector as soon as possible of any planned physical
alterations or additions to the permitted facility.
(2) Anticipated noncompliance. The permittee
shall give advance notice to the Director of any
planned changes in the permitted facility or activ-
ity which may result in noncompliance with per-
mit requirements.
(3) Transfers. This permit is not transferable to
any person except after notice to the Director. The
Director may require modification or revocation
and reissuance of the permit to change the name
of the permittee and incorporate such other re-
quirements as may be necessary under the Safe
Drinking Water Act. (See § 144.38; in some cases,
modification or revocation and reissuance is man-
datory.)
(4) Monitoring reports. Monitoring results shall
be reported at the intervals specified elsewhere in
this permit.
(5) Compliance schedules. Reports of compli-
ance or noncompliance with, or any progress re-
ports on, interim and final requirements contained
in any compliance schedule of this permit shall be
submitted no later than 30 days following each
schedule date.
(6) Twenty-four hour reporting. The permittee
shall report any noncompliance which may endan-
ger health or the environment, including:
(i) Any monitoring or other information which
indicates that any contaminant may cause an
endangerment to a USDW; or
(ii) Any noncompliance with a permit condition
or malfunction of the injection system which may
cause fluid migration into or between USDWs.
Any information shall be provided orally within
24 hours from the time the permittee becomes
aware of the circumstances. A written submission
shall also be provided within 5 days of the time
the permittee becomes aware of the circumstances.
The written submission shall contain a description
25
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§144.51
of the noncompliance and its cause, the period of
noncompliance, including exact dates and times,
and if the noncompliance has not been corrected,
the anticipated time it is expected to continue; and
steps taken or planned to reduce, eliminate, and
prevent reoccurrence of the noncompliance.
(7) Other noncompliance. The permittee shall
report all instances of noncompliance not reported
under paragraphs (1) (4), (5), and (6) of this sec-
tion, at the time monitoring reports are submitted.
The reports shall contain the information listed in
paragraph (1)(6) of this section.
(8) Other information. Where the permittee be-
comes aware that it failed to submit any relevant
facts in a permit application, or submitted incor-
rect information in a permit application or in any
report to the Director, it shall promptly submit
such facts or information.
(m) Requirements prior to commencing injec-
tion. Except for all new wells authorized by an
area permit under § 144.33(c), a new injection well
may not commence injection until construction is
complete, and
(1) The permittee has submitted notice of com-
pletion of construction to the Director; and
(2)(i) The Director has inspected or otherwise
reviewed the new injection well and finds it is in
compliance with the conditions of the permit; or
(ii) The permittee has not received notice form
the Director of his or her intent to inspect or oth-
erwise review the new injection well within 13
days of the date of the notice in paragraph (m)(l)
of this section, in which case prior inspection or
review is waived and the permittee may com-
mence injection. The Director shall include in his
notice a reasonable time period in which he shall
inspect the well.
(n) The permittee shall notify the Director at
such times as the permit requires before conver-
sion or abandonment of the well or in the case of
area permits before closure of the project.
(o) A Class I, II or III permit shall include and
a Class V permit may include, conditions which
meet the applicable requirements of §146.10 of
this chapter to insure that plugging and abandon-
ment of the well will not allow the movement of
fluids into or between USDWs. Where the plan
meets the requirements of § 146.10 of this chapter,
the Director shall incorporate it into the permit as
a permit condition. Where the Director's review of
an application indicates that the permittee's plan is
inadequate, the Director may require the applicant
to revise the plan, prescribe conditions meeting the
requirements of this paragraph, or deny the permit.
For purposes of this paragraph, temporary or inter-
mittent cessation of injection operations is not
abandonment.
(p) Plugging and abandonment report. For
EPA-administered programs, within 60 days after
plugging a well or at the time of the next quarterly
report (whichever is less) the owner or operator
shall submit a report to the Regional Adminis-
trator. If the quarterly report is due less than 15
days before completion of plugging, then the re-
port shall be submitted within 60 days. The report
shall be certified as accurate by the person who
performed the plugging operation. Such report
shall consist of either:
(1) A statement that the well was plugged in ac-
cordance with the plan previously submitted to the
Regional Administrator; or
(2) Where actual plugging differed from the
plan previously submitted, and updated version of
the plan on the form supplied by the regional ad-
ministrator, specifying the differences.
(q) Duty to establish and maintain mechanical
integrity. (1) The owner or operator of a Class I,
II or III well permitted under this part shall estab-
lish prior to commencing injection or on a sched-
ule determined by the Director, and thereafter
maintain mechanical integrity as defined in § 146.8
of this chapter. For EPA-administered programs,
the Regional Administrator may require by written
notice that the owner or operator comply with a
schedule describing when mechanical integrity
demonstrations shall be made.
(2) When the Director determines that a Class
I, II, or III well lacks mechanical integrity pursu-
ant to § 146.8 of this chapter, he shall give written
notice of his determination to the owner or opera-
tor. Unless the Director requires immediate ces-
sation, the owner or operator shall cease injection
into the well within 48 hours of receipt of the Di-
rector's determination. The Director may allow
plugging of the well pursuant to the requirements
of § 146.10 of this chapter or require the permittee
to perform such additional construction, operation,
monitoring, reporting and corrective action as is
necessary to prevent the movement of fluid into or
between USDWs caused by the lack of mechanical
integrity. The owner or operator may resume in-
jection upon written notification from the Director
that the owner or operator has demonstrated me-
chanical integrity pursuant to § 146.8 of this chap-
ter.
(3) The Director may allow the owner or opera-
tor of a well which lacks mechanical integrity pur-
suant to § 146.8(a)(l) of this chapter to continue or
resume injection, if the owner or operator has
made a satisfactory demonstration that there is no
movement of fluid into or between USDWs.
[48 FR 14189, Apr. 1, 1983, as amended at 49 FR 20185,
May 11, 1984; 53 FR 28147, July 26, 1988; 58 FR
63898, Dec. 3, 1993]
26
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§144.52
§144.52 Establishing permit condi-
tions.
(a) In addition to conditions required in
§ 144.51, the Director shall establish conditions, as
required on a case-by-case basis under § 144.36
(duration of permits), §144.53(a) (schedules of
compliance), §144.54 (monitoring), and for EPA
permits only §144.53(b) (alternate schedules of
compliance), and § 144.4 (considerations under
Federal law). Permits for owners or operators of
hazardous waste injection wells shall include con-
ditions meeting the requirements of §144.14 (re-
quirements for wells injecting hazardous waste),
§§ 144.52(a)(7) and (a)(9), and subpart G of part
146. Permits for other wells shall contain the fol-
lowing requirements, when applicable.
(1) Construction requirements as set forth in
part 146. Existing wells shall achieve compliance
with such requirements according to a compliance
schedule established as a permit condition. The
owner or operator of a proposed new injection
well shall submit plans for testing, drilling, and
construction as part of the permit application. Ex-
cept as authorized by an area permit, no
constuction may commence until a permit has
been issued containing construction requirements
(see §144.11). New wells shall be in compliance
with these requirements prior to commencing in-
jection operations. Changes in construction plans
during construction may be approved by the Ad-
ministrator as minor modifications (§ 144.41). No
such changes may be physically incorporated into
construction of the well prior to approval of the
modification by the Director.
(2) Corrective action as set forth in §144.55
and § 146.7
(3) Operation requirements as set forth in 40
CFR part 146; the permit shall establish any maxi-
mum injection volumes and/or pressures necessary
to assure that fractures are not initiated in the con-
fining zone, that injected fluids do not migrate into
any underground source of drinking water, that
formation fluids are not displaced into any under-
ground source of drinking water, and to assure
compliance with the part 146 operating require-
ments.
(4) Requirements for wells managing hazardous
waste, as set forth in § 144.14.
(5) Monitoring and reporting requirements as set
forth in 40 CFR part 146. The permittee shall be
required to identify types of tests and methods
used to generate the monitoring data. For EPA ad-
ministered programs, monitoring of the nature of
injected fluids shall comply with applicable analyt-
ical methods cited and described in table I of 40
CFR 136.3 or in appendix III of 40 CFR part 261
or in certain circumstances by other methods that
have been approved by the Regional Adminis-
trator.
(6) After a cessation of operations of two years
the owner or operator shall plug and abandon the
well in accordance with the plan unless he:
(i) Provides notice to the Regional Adminis-
trator;
(ii) Describes actions or procedures, satisfactory
to the Regional Administrator, that the owner or
operator will take to ensure that the well will not
endanger USDWs during the period of temporary
abandonment. These actions and procedures shall
include compliance with the technical require-
ments applicable to active injection wells unless
waived by the Regional Administrator.
(7) Financial responsibility, (i) The permittee,
including the transferor of a permit, is required to
demonstrate and maintain financial responsibility
and resources to close, plug, and abandon the un-
derground injection operation in a manner pre-
scribed by the Director until:
(A) The well has been plugged and abandoned
in accordance with an approved plugging and
abandonment plan pursuant to §§ 144.5l(o) and
146.10 of this chapter, and submitted a plugging
and abandonment report pursuant to §144.51(p);
or
(B) The well has been converted in compliance
with the requirements of § 144.51(n); or
(C) The transferor of a permit has received no-
tice from the Director that the owner or operator
receiving transfer of the permit, the new permittee,
has demonstrated financial responsibility for the
well.
(ii) The permittee shall show evidence of such
financial responsibility to the Director by the sub-
mission of a surety bond, or other adequate assur-
ance, such as a financial statement or other mate-
rials acceptable to the Director. For EPA adminis-
tered programs, the Regional Administrator may
on a periodic basis require the holder of a lifetime
permit to submit an estimate of the resources
needed to plug and abandon the well revised to re-
flect inflation of such costs, and a revised dem-
onstration of financial responsibility, if necessary.
The owner or operator of a well injecting hazard-
ous waste must comply with the financial respon-
sibility requirements of subpart F of this part.
(8) Mechanical integrity. A permit for any Class
I, II or III well or injection project which lacks
mechanical integrity shall include, and for any
Class V well may include, a condition prohibiting
injection operations until the permittee shows to
the satisfaction of the Director under § 146.08 that
the well has mechanical integrity.
(9) Additional conditions. The Director shall im-
pose on a case-by-case basis such additional con-
ditions as are necessary to prevent the migration
of fluids into underground sources of drinking
water.
27
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§144.53
(b)(l) In addition to conditions required in all
permits the Director shall establish conditions in
permits as required on a case-by-case basis, to
provide for and assure compliance with all appli-
cable requirements of the SDWA and parts 144,
145, 146 and 124.
(2) For a State issued permit, an applicable re-
quirement is a State statutory or regulatory re-
quirement which takes effect prior to final admin-
istrative disposition of the permit. For a permit is-
sued by EPA, an applicable requirement is a statu-
tory or regulatory requirement (including any in-
terim final regulation) which takes effect prior to
the issuance of the permit (except as provided in
§ 124.86(c) for UIC permits being processed under
subpart E or F of part 124). Section 124.14 (re-
opening of comment period) provides a means for
reopening EPA permit proceedings at the discre-
tion of the Director where new requirements be-
come effective during the permitting process and
are of sufficient magnitude to make additional pro-
ceedings desirable. For State and EPA adminis-
tered programs, an applicable requirement is also
any requirement which takes effect prior to the
modification or revocation and reissuance of a per-
mit, to the extent allowed in § 144.39.
(3) New or reissued permits, and to the extent
allowed under § 144.39 modified or revoked and
reissued permits, shall incorporate each of the ap-
plicable requirements referenced in § 144.52.
(c) Incorporation. All permit conditions shall be
incorporated either expressly or by reference. If in-
corporated by reference, a specific citation to the
applicable regulations or requirements must be
given in the permit.
[48 FR 14189, Apr. 1, 1983, as amended at 49 FR 20185,
May 11, 1984; 53 FR 28147, July 26, 1988; 58 FR
63898; Dec. 3, 1993]
§ 144.53 Schedule of compliance.
(a) General. The permit may, when appropriate,
specify a schedule of compliance leading to com-
pliance with the SDWA and parts 144, 145, 146,
and 124.
(1) Time for compliance. Any schedules of com-
pliance shall require compliance as soon as pos-
sible, and in no case later than 3 years after the
effective date of the permit.
(2) Interim dates. Except as provided in para-
graph (b)(l)(ii) of this section, if a permit estab-
lishes a schedule of compliance which exceeds 1
year from the date of permit issuance, the schedule
shall set forth interim requirements and the dates
for their achievement.
(i) The time between interim dates shall not ex-
ceed 1 year.
(ii) If the time necessary for completion of any
interim requirement is more than 1 year and is not
readily divisible into stages for completion, the
permit shall specify interim dates for the submis-
sion of reports of progress toward completion of
the interim requirements and indicate a projected
completion date.
(3) Reporting. The permit shall be written to re-
quire that if paragraph (a)(l) of this section is ap-
plicable, progress reports be submitted no later
than 30 days following each interim date and the
final date of compliance.
(b) Alternative schedules of compliance. A per-
mit applicant or permittee may cease conducting
regulated activities (by plugging and abandon-
ment) rather than continue to operate and meet
permit requirements as follows:
(1) If the permittee decides to cease conducting
regulated activities at a given time within the term
of a permit which has already been issued:
(i) The permit may be modified to contain a
new or additional schedule leading to timely ces-
sation of activities; or
(ii) The permittee shall cease conducting per-
mitted activities before noncompliance with any
interim or final compliance schedule requirement
already specified in the permit.
(2) If the decision to cease conducting regulated
activities is made before issuance of a permit
whose term will include the termination date, the
permit shall contain a schedule leading to termi-
nation which will ensure timely compliance with
applicable requirements.
(3) If the permittee is undecided whether to
cease conducting regulated activities, the Director
may issue or modify a permit to contain two
schedules as follows:
(i) Both schedules shall contain an identical in-
terim deadline requiring a final decision on wheth-
er to cease conducting regulated activities no later
than a date which ensures sufficient time to com-
ply with applicable requirements in a timely man-
ner if the decision is to continue conducting regu-
lated activities;
(ii) One schedule shall lead to timely compli-
ance with applicable requirements;
(iii) The second schedule shall lead to cessation
of regulated activities by a date which will ensure
timely compliance with applicable requirements;
(iv) Each permit containing two schedules shall
include a requirement that after the permittee has
made a final decision under paragraph (b)(3)(i) of
this section it shall follow the schedule leading to
compliance if the decision is to continue conduct-
ing regulated activities, and follow the schedule
leading to termination if the decision is to cease
conducting regulated activities.
(4) The applicant's or permittee's decision to
cease conducting regulated activities shall be evi-
denced by a firm public commitment satisfactory
to the Director, such as a resolution of the board
of directors of a corporation.
28
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§144.61
§144.54 Requirements for recording
and reporting of monitoring results.
All permits shall specify:
(a) Requirements concerning the proper use,
maintenance, and installation, when appropriate, of
monitoring equipment or methods (including bio-
logical monitoring methods when appropriate);
(b) Required monitoring including type, inter-
vals, and frequency sufficient to yield data which
are representative of the monitored activity includ-
ing when appropriate, continuous monitoring;
(c) Applicable reporting requirements based
upon the impact of the regulated activity and as
specified in part 146. Reporting shall be no less
frequent than specified in the above regulations.
§144.55 Corrective action.
(a) Coverage. Applicants for Class I, II, (other
than existing), or III injection well permits shall
identify the location of all known wells within the
injection well's area of review which penetrate the
injection zone, or in the case of Class II wells op-
erating over the fracture pressure of the injection
formation, all known wells within the area of re-
view penetrating formations affected by the in-
crease in pressure. For such wells which are im-
properly sealed, completed, or abandoned, the ap-
plicant shall also submit a plan consisting of such
steps or modifications as are necessary to prevent
movement of fluid into underground sources of
drinking water ("corrective action"). Where the
plan is adequate, the Director shall incorporate it
into the permit as a condition. Where the Direc-
tor's review of an application indicates that the
permittee's plan is inadequate (based on the fac-
tors in § 146.07), the Director shall require the ap-
plicant to revise the plan, prescribe a plan for cor-
rective action as a condition of the permit under
paragraph (b) of this section, or deny the applica-
tion. The Director may disregard the provisions of
§ 146.06 (Area of Review) and § 146.07 (Correc-
tive Action) when reviewing an application to per-
mit an existing Class II well.
(b) Requirements—(1) Existing injection wells.
Any permit issued for an existing injection well
(other than Class II) requiring corrective action
shall include a compliance schedule requiring any
corrective action accepted or prescribed under
paragraph (a) of this section to be completed as
soon as possible.
(2) New injection wells. No owner or operator
of a new injection well may begin injection until
all required corrective action has been taken.
(3) Injection pressure limitation. The Director
may require as a permit condition that injection
pressure be so limited that pressure in the injection
zone does not exceed hydrostatic pressure at the
site of any improperly completed or abandoned
well within the area of review. This pressure limi-
tation shall satisfy the corrective action require-
ment. Alternatively, such injection pressure limita-
tion can be part of a compliance schedule and last
until all other required corrective action has been
taken.
(4) Class 111 wells only. When setting corrective
action requirements the Director shall consider the
overall effect of the project on the hydraulic gra-
dient in potentially affected USDWs, and the cor-
responding changes in potentiometric surface(s)
and flow direction(s) rather than the discrete effect
of each well. If a decision is made that corrective
action is not necessary based on the determina-
tions above, the monitoring program required in
§ 146.33(b) shall be designed to verify the validity
of such determinations.
Subpart F—Financial Responsibil-
ity: Class I Hazardous Waste
Injection Wells
SOURCE: 49 FR 20186, May 11, 1984, unless otherwise
noted.
§144.60 Applicability.
(a) The requirements of §§ 144.62, 144.63, and
144.70 apply to owners and operators of all exist-
ing and new Class I Hazardous waste injection
wells, except as provided otherwise in this section.
§144.61 Definitions of terms as used in
this subpart.
(a) Plugging and abandonment plan means the
plan for plugging and abandonment prepared in
accordance with the requirements of § 144.28 and
§144.51.
(b) Current plugging cost estimate means the
most recent of the estimates prepared in accord-
ance with § 144.62 (a), (b) and (c).
(c) Parent corporation means a corporation
which directly owns at least 50 percent of the vot-
ing stock of the corporation which is the injection
well owner or operator; the latter corporation is
deemed a subsidiary of the parent corporation.
(d) The following terms are used in the speci-
fications for the financial test for plugging and
abandonment. The definitions are intended to rep-
resent the common meanings of the terms as they
are generally used by the business community.
Assets means all existing and all probable future
economic benefits obtained or controlled by a par-
ticular entity.
Current assets means cash or other assets or re-
sources commonly identified as those which are
reasonably expected to be realized in cash or sold
or consumed during the normal operating cycle of
the business.
Current liabilities means obligations whose liq-
uidation is reasonably expected to require the use
29
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§144.62
of existing resources properly classifiable as cur-
rent assets or the creation of other current liabil-
ities.
Independently audited refers to an audit per-
formed by an independent certified public account-
ant in accordance with generally accepted auditing
standards.
Liabilities means probable future sacrifices of
economic benefits arising from present obligations
to transfer assets or provide services to other enti-
ties in the future as a result of past transactions or
events.
Net working capital means current assets minus
current liabilities.
Net worth means total assets minus total liabil-
ities and is equivalent to owner's equity.
Tangible net worth means the tangible assets
that remain after deducting liabilities; such assets
would not include intangibles such as goodwill
and rights to patents or royalties.
§ 144.62 Cost estimate for plugging and
abandonment.
(a) The owner or operator must prepare a writ-
ten estimate, in current dollars, of the cost of plug-
ging the injection well in accordance with the
plugging and abandonment plan as specified in
§§144.28 and 144.51. The plugging and abandon-
ment cost estimate must equal the cost of plugging
and abandonment at the point in the facility's op-
erating life when the extent and manner of its op-
eration would making plugging and abandonment
the most expensive, as indicated by its plugging
and abandonment plan.
(b) The owner or operator must adjust the plug-
ging and abandonment cost estimate for inflation
within 30 days after each anniversary of the date
on which the first plugging and abandonment cost
estimate was prepared. The adjustment must be
made as specified in paragraphs (b) (1) and (2) of
this section, using an inflation factor derived from
the annual Oil and Gas Field Equipment Cost
Index. The inflation factor is the result of dividing
the latest published annual Index by the Index for
the previous year.
(1) The first adjustment is made by multiplying
the plugging and abandonment cost estimate by
the inflation factor. The result is the adjusted plug-
ging and abandonment cost estimate.
(2) Subsequent adjustments are made by mul-
tiplying the latest adjusted plugging and abandon-
ment cost estimate by the latest inflation factor.
(c) The owner or operator must revise the plug-
ging and abandonment cost estimate whenever a
change in the plugging and abandonment plan in-
creases the cost of plugging and abandonment.
The revised plugging and abandonment cost esti-
mate must be adjusted for inflation as specified in
§ 144.62(b).
(d) The owner or operator must keep the fol-
lowing at the facility during the operating life of
the facility: the latest plugging and abandonment
cost estimate prepared in accordance with § 144.62
(a) and (c) and, when this estimate has been ad-
justed in accordance with § 144.62(b), the latest
adjusted plugging and abandonment cost estimate.
§144.63 Financial assurance for plug-
ging and abandonment.
An owner or operator of each facility must es-
tablish financial assurance for the plugging and
abandonment of each existing and new Class I
hazardous waste injection well. He must choose
from the options as specified in paragraphs (a)
through (f) of this section.
(a) Plugging and abandonment trust fund. (1)
An owner or operator may satisfy the requirements
of this section by establishing a plugging and
abandonment trust fund which conforms to the re-
quirements of this paragraph and submitting an
originally signed duplicate of the trust agreement
to the Regional Administrator. An owner or opera-
tor of a Class I well injecting hazardous waste
must submit the originally signed duplicate of the
trust agreement to the Regional Administrator with
the permit application or for approval to operate
under rule. The trustee must be an entity which
has the authority to act as a trustee and whose
trust operations are regulated and examined by a
Federal or State agency.
(2) The wording of the trust agreement must be
identical to the wording specified in
§ 144.70(a)(l), and the trust agreement must be ac-
companied by a formal certification of acknowl-
edgment (for example, see § 144.70(a)(2)). Sched-
ule A of the trust agreement must be updated
within 60 days after a change in the amount of the
current plugging and abandonment cost estimate
covered by the agreement.
(3) Payments into the trust fund must be made
annually by the owner or operator over the term
of the initial permit or over the remaining operat-
ing life of the injection well as estimated in the
plugging and abandonment plan, whichever period
is shorter; this period is hereafter referred to as the
"pay-in period." The payments into the plugging
and abandonment trust fund must be made as fol-
lows:
(i) For a new well, the first payment must be
made before the initial injection of hazardous
waste. A receipt from the trustee for this payment
must be submitted by the owner or operator to the
Regional Administrator before this initial injection
of hazardous waste. The first payment must be at
least equal to the current plugging and abandon-
ment cost estimate, except as provided in
§ 144.70(g), divided by the number of years in the
pay-in period. Subsequent payments must be made
30
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§144.63
no later than 30 days after each anniversary date
of the first payment. The amount of each subse-
quent payment must be determined by this for-
mula:
PE-CV
Next payment
where PE is the current plugging and abandonment cost
estimate, CV is the current value of the trust fund, and
Y is the number of years remaining in the pay-in period.
(ii) If an owner or operator establishes a trust
fund as specified in § 144.63(a) of this chapter,
and the value of that trust fund is less than the
current plugging and abandonment cost estimate
when a permit is awarded for the injection well,
the amount of the current plugging and abandon-
ment cost estimate still to be paid into the trust
fund must be paid in over the pay-in period as de-
fined in paragraph (a)(3) of this section. Payments
must continue to be made no later than 30 days
after each anniversary date of the first payment
made pursuant to part 144 of this chapter. The
amount of each payment must be determined by
this formula:
PE-CV
Next payment
where PE is the current plugging and abandonment cost
estimate, CV is the current value of the trust fund, and
Y is the number of years remaining in the pay-in period.
(4) The owner or operator may accelerate pay-
ments into the trust fund or he may deposit the
full amount of the current plugging and abandon-
ment cost estimate at the time the fund is estab-
lished. However, he must maintain the value of
the fund at no less than the value that the fund
would have if annual payments were made as
specified in paragraph (a)(3) of this section.
(5) If the owner or operator establishes a plug-
ging and abandonment trust fund after having used
one or more alternate mechanisms specified in this
section or in § 144.63 of this chapter, his first pay-
ment must be in at least the amount that the fund
would contain if the trust fund were established
initially and annual payments made according to
specifications of this paragraph.
(6) After the pay-in period is completed, when-
ever the current plugging and abandonment cost
estimate changes, the owner or operator must com-
pare the new estimate with the trustee's most re-
cent annual valuation of the trust fund. If the value
of the fund is less than the amount of the new es-
timate, the owner or operator, within 60 days after
the change in the cost estimate, must either deposit
an amount into the fund so that its value after this
deposit at least equals the amount of the current
plugging and abandonment cost estimate, or obtain
other financial assurance as specified in this sec-
tion to cover the difference.
(7) If the value of the trust fund is greater than
the total amount of the current plugging and aban-
donment cost estimate, the owner or operator may
submit a written request to the Regional Adminis-
trator for release of the amount in excess of the
current plugging and abandonment cost estimate.
(8) If an owner or operator substitutes other fi-
nancial assurance as specified in this section for
all or part of the trust fund, he may submit a writ-
ten request to the Regional Administrator for re-
lease of the amount in excess of the current plug-
ging and abandonment cost estimate covered by
the trust fund.
(9) Within 60 days after receiving a request
from the owner or operator for release of funds as
specified in paragraph (a)(7) or (8) of this section,
the Regional Administrator will instruct the trustee
to release to the owner or operator such funds as
the Regional Administrator specifies in writing.
(10) After beginning final plugging and aban-
donment, an owner or operator or any other person
authorized to perform plugging and abandonment
may request reimbursement for plugging and aban-
donment expenditures by submitting itemized bills
to the Regional Administrator. Within 60 days
after receiving bills for plugging and abandonment
activities, the Regional Administrator will deter-
mine whether the plugging and abandonment ex-
penditures are in accordance with the plugging and
abandonment plan or otherwise justified, and if so,
he will instruct the trustee to make reimbursement
in such amounts as the Regional Administrator
specifies in writing. If the Regional Administrator
has reason to believe that the cost of plugging and
abandonment will be significantly greater than the
value of the trust fund, he may withhold reim-
bursement of such amounts as he deems prudent
until he determines, in accordance with
§ 144.63(i), that the owner or operator is no longer
required to maintain financial assurance for plug-
ging and abandonment.
(11) The Regional Administrator will agree to
termination of the trust when:
(i) An owner or operator substitutes alternate fi-
nancial assurance as specified in this section; or
(ii) The Regional Administrator releases the
owner or operator from the requirements of this
section in accordance with § 144.63(i).
(b) Surety bond guaranteeing payment into a
plugging and abandonment trust fund. (1) An
owner or operator must satisfy the requirements of
this section by obtaining a surety bond which con-
forms to the requirements of this paragraph and
submitting the bond to the Regional Administrator
with the application for a permit or for approval
to operate under rule. The bond must be effective
31
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§144.63
before the initial injection of hazardous waste. The
surety company issuing the trust must, at a mini-
mum, be among those listed as acceptable sureties
on Federal bonds in Circular 570 of the U.S. De-
partment of the Treasury.
(2) The wording of the surety bond must be
identical to the wording in § 144.70(b).
(3) The owner or operator who uses a surety
bond to satisfy the requirements of this section
must also establish a standby trust fund. Under the
terms of the bond, all payments made thereunder
will be deposited by the surety directly into the
standby trust fund in accordance with instructions
from the Regional Administrator. This standby
trust fund must meet the requirements specified in
§ 144.63(a), except that:
(i) An originally signed duplicate of the trust
agreement must be submitted to the Regional Ad-
ministrator with the surety bond; and
(ii) Until the standby trust fund is funded pursu-
ant to the requirements of this section, the follow-
ing are not required by these requirements:
(A) Payments into the trust fund as specified in
§ 144.63(a);
(B) Updating of Schedule A of the trust agree-
ment [see § 144.70(a)] to show current plugging
and abandonment cost estimates;
(C) Annual valuations as required by the trust
agreement; and
(D) Notices of nonpayment as required by the
trust agreement.
(4) The bond must guarantee that the owner or
operator will:
(i) Fund the standby trust fund in an amount
equal to the penal sum of the bond before begin-
ning of plugging and abandonment of the injection
well; or
(ii) Fund the standby trust fund in an amount
equal to the penal sum within 15 days after an
order to begin plugging and abandonment is issued
by the Regional Administrator or a U.S. district
court or other court of competent jurisdiction; or
(iii) Provide alternate financial assurance as
specified in this section, and obtain the Regional
Administrator's written approval of the assurance
provided, within 90 days after receipt by both the
owner or operator and the Regional Administrator
of a notice of cancellation of the bond from the
surety.
(5) Under the terms of the bond, the surety will
become liable on the bond obligation when the
owner or operator fails to perform as guaranteed
by the bond.
(6) The penal sum of the bond must be in
amount at least equal to the current plugging and
abandonment cost estimate, except as provided in
§ 144.63(g).
(7) Whenever the current plugging and aban-
donment cost estimate increases to an amount
greater than the penal sum, the owner or operator,
within 60 days after the increase, must either
cause the penal sum to be increased to an amount
at least equal to the current plugging and abandon-
ment cost estimate and submit evidence of such
increase to the Regional Administrator, or obtain
other financial assurance as specified in this sec-
tion to cover the increase. Whenever the current
plugging and abandonment cost estimate de-
creases, the penal sum may be reduced to the
amount of the current plugging and abandonment
cost estimate following written approval by the
Regional Administrator.
(8) Under the terms of the bond, the surety may
cancel the bond by sending notice of cancellation
by certified mail to the owner or operator and to
the Regional Administrator. Cancellation may not
occur, however, during 120 days beginning on the
date of the receipt of the notice of cancellation by
both owner or operator and the Regional Adminis-
trator as evidenced by the returned receipts.
(9) The owner or operator may cancel the bond
if the Regional Administrator has given prior writ-
ten consent based on his receipt of evidence of al-
ternate financial assurance as specified in this sec-
tion.
(c) Surety bond guaranteeing performance of
plugging and abandonment. (1) An owner or oper-
ator may satisfy the requirements of this section
by obtaining a surety bond which conforms to the
requirements of this paragraph and submitting the
bond to the Regional Administrator. An owner or
operator of a new facility must submit the bond to
the Regional Administrator with the permit appli-
cation or for approval to operate under rule. The
bond must be effective before injection of hazard-
ous waste is started. The surety company issuing
the bond must, at a minimum, be among those
listed as acceptable sureties on Federal bonds in
Circular 570 of the U.S. Department of the Treas-
ury.
(2) The wording of the surety bond must be
identical to the wording specified in § 144.70(c).
(3) The owner or operator who uses a surety
bond to satisfy the requirements of this section
must also establish a standby trust fund. Under the
terms of the bond, all payments made thereunder
will be deposited by the surety directly into the
standby trust fund in accordance with instructions
from the Regional Administrator. The standby
trust must meet the requirements specified in
§ 144.63(a), except that:
(i) An original signed duplicate of the trust
agreement must be submitted to the Regional Ad-
ministrator with the surety bond; and
(ii) Unless the standby trust fund is funded pur-
suant to the requirements of this section, the fol-
lowing are not required by these regulations:
32
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§144.63
(A) Payments into the trust fund as specified in
§ 144.63(a);
(B) Updating of Schedule A of the trust agree-
ment [see § 144.70(a)] to show current plugging
and abandonment cost estimates;
(C) Annual valuations as required by the trust
agreement; and
(D) Notices of nonpayment as required by the
trust agreement.
(4) The bond must guarantee that the owner or
operator will:
(i) Perform plugging and abandonment in ac-
cordance with the plugging and abandonment plan
and other requirements of the permit for the injec-
tion well whenever required to do so; or
(ii) Provide alternate financial assurance as
specified in this section, and obtain the Regional
Administrator's written approval of the assurance
provided, within 90 days after receipt by both the
owner or operator and the Regional Administrator
of a notice of cancellation of the bond from the
surety.
(5) Under the terms of the bond, the surety will
become liable on the bond obligation when the
owner or operator fails to perform as guaranteed
by the bond. Following a determination that the
owner or operator has failed to perform plugging
and abandonment in accordance with the plugging
and abandonment plan and other permit require-
ments when required to do so, under terms of the
bond the surety will perform plugging and aban-
donment as guaranteed by the bond or will deposit
the amount of the penal sum into the standby trust
fund.
(6) The penal sum of the bond must be in an
amount at least equal to the current plugging and
abandonment cost estimate.
(7) Whenever the current plugging and aban-
donment cost estimate increases to an amount
greater than the penal sum, the owner or operator,
within 60 days after the increase, must either
cause the penal sum to be increased to an amount
at least equal to the current plugging and abandon-
ment cost estimate and submit evidence of such
increase to the Regional Administrator, or obtain
other financial assurance as specified in this sec-
tion. Whenever the plugging and abandonment
cost estimate decreases, the penal sum may be re-
duced to the amount of the current plugging and
abandonment cost estimate following written ap-
proval by the Regional Administrator.
(8) Under the terms of the bond, the surety may
cancel the bond by sending notice of cancellation
by certified mail to the owner or operator and to
the Regional Administrator. Cancellation may not
occur, however, during the 120 days beginning on
the date of receipt of the notice of cancellation by
both the owner or operator and the Regional Ad-
ministrator, as evidenced by the return receipts.
(9) The owner or operator may cancel the bond
if the Regional Administrator has given prior writ-
ten consent. The Regional Administrator will pro-
vide such written consent when:
(i) An owner or operator substitute alternate fi-
nancial assurance as specified in this section; or
(ii) The Regional Administrator releases the
owner or operator from the requirements of this
section in accordance with § 144.63(i).
(10) The surety will not be liable for defi-
ciencies in the performance of plugging and aban-
donment by the owner or operator after the Re-
gional Administrator releases the owner or opera-
tor from the requirements of this section in ac-
cordance with § 144.63(i).
(d) Plugging and abandonment letter of credit.
(1) An owner or operator may satisfy the require-
ments of this section by obtaining an irrevocable
standby letter of credit which conforms to the re-
quirements of this paragraph and submitting the
letter to the Regional Administrator. An owner or
operator of an injection well must submit the letter
of credit to the Regional Administrator during sub-
mission of the permit application or for approval
to operate under rule. The letter of credit must be
effective before initial injection of hazardous
waste. The issuing institution must be an entity
which has the authority to issue letters of credit
and whose letter-of-credit operations are regulated
and examined by a Federal or State agency.
(2) The wording of the letter of credit must be
identical to the wording specified in § 144.70(d).
(3) An owner or operator who uses a letter of
credit to satisfy the requirements of this section
must also establish a standby trust fund. Under the
terms of the letter of credit, all amounts paid pur-
suant to a draft by the Regional Administrator will
be deposited by the issuing institution directly into
the standby trust fund in accordance with instruc-
tions from the Regional Administrator. This stand-
by trust fund must meet the requirements of the
trust fund specified in § 144.63(a), except that:
(i) An originally signed duplicate of the trust
agreement must be submitted to the Regional Ad-
ministrator with the letter of credit; and
(ii) Unless the standby trust fund is funded pur-
suant to the requirements of this section, the fol-
lowing are not required by these regulations:
(A) Payments into the trust fund as specified in
§ 144.63(a);
(B) Updating of Schedule A of the trust agree-
ment (see § 144.70(a)) to show current plugging
and abandonment cost estimates;
(C) Annual valuations as required by the trust
agreement; and
(D) Notices of nonpayment as required by the
trust agreement.
(4) The letter of credit must be accompanied by
a letter from the owner or operator referring to the
33
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§144.63
letter of credit by number, issuing institution, and
date, and providing the following information: the
EPA Identification Number, name, and address of
the facility, and the amount of funds assured for
plugging and abandonment of the well by the let-
ter of credit.
(5) The letter of credit must be irrevocable and
issued for a period of at least 1 year. The letter
of credit must provide that the expiration date will
be automatically extended for a period of at least
1 year unless, at least 120 days before the current
expiration date, the issuing institution notifies both
the owner or operator and the Regional Adminis-
trator by certified mail of a decision not to extend
the expiration date. Under the terms of the letter
of credit, the 120 days will begin on the date
when both the owner or operator and the Regional
Administrator have received the notice, as evi-
denced by the return receipts.
(6) The letter of credit must be issued in an
amount at least equal to the current plugging and
abandonment cost estimate, except as provided in
§ 144.63(g).
(7) Whenever the current plugging and aban-
donment cost estimate increases to an amount
greater than the amount of the credit, the owner or
operator, within 60 days after the increase, must
either cause the amount of the credit to be in-
creased so that it at least equals the current plug-
ging and abandonment cost estimate and submit
evidence of such increase to the Regional Admin-
istrator, or obtain other financial assurance as
specified in this section to cover the increase.
Whenever the current plugging and abandonment
cost estimate decreases, the amount of the credit
may be reduced to the amount of the current plug-
ging and abandonment cost estimate following
written approval by the Regional Administrator.
(8) Following a determination that the owner or
operator has failed to perform final plugging and
abandonment in accordance with the plugging and
abandonment plan and other permit requirements
when required to do so, the Regional Adminis-
trator may draw on the letter of credit.
(9) If the owner or operator does not establish
alternate financial assurance as specified in this
section and obtain written approval of such alter-
nate assurance from the Regional Administrator
within 90 days after receipt by both the owner or
operator and the Regional Administrator of a no-
tice from the issuing institution that it has decided
not to extend the letter of credit beyond the cur-
rent expiration date, the Regional Administrator
will draw on the letter of credit. The Regional Ad-
ministrator may delay the drawing if the issuing
institution grants an extension of the term of the
credit. During the last 30 days of any such exten-
sion the Regional Administrator will draw on the
letter of credit if the owner or operator has failed
to provide alternate financial assurance as speci-
fied in this section and obtain written approval of
such assurance from the Regional Administrator.
(10) The Regional Administrator will return the
letter of credit to the issuing institution for termi-
nation when:
(i) An owner or operator substitutes alternate fi-
nancial assurance as specified in this section; or
(ii) The Regional Administrator releases the
owner or operator from the requirements of this
section in accordance with § 144.63(i).
(e) Plugging and abandonment insurance. (1)
An owner or operator may satisfy the requirements
of this section by obtaining plugging and abandon-
ment insurance which conforms to the require-
ments of this paragraph and submitting a certifi-
cate of such insurance to the Regional Adminis-
trator. An owner or operator of a new injection
well must submit the certificate of insurance to the
Regional Administrator with the permit application
or for approval operate under rule. The insurance
must be effective before injection starts. At a min-
imum, the insurer must be licensed to transact the
business of insurance, or eligible to provide insur-
ance as an excess or surplus lines insurer, in one
or more States.
(2) The wording of the certificate of insurance
must be identical to the wording specified in
§ 144.70(e).
(3) The plugging and abandonment insurance
policy must be issued for a face amount at least
equal to the current plugging and abandonment es-
timate, except as provided in § 144.63(g). The
term "face amount" means the total amount the
insurer is obligated to pay under the policy. Actual
payments by the insurer will not change the face
amount, although the insurers future liability will
be lowered by the amount of the payments.
(4) The plugging and abandonment insurance
policy must guarantee that funds will be available
whenever final plugging and abandonment occurs.
The policy must also guarantee that once plugging
and abandonment begins, the issurer will be re-
sponsible for paying out funds, up to an amount
equal to the face amount of the policy, upon the
direction of the Regional Administrator, to such
party or parties as the Regional Administrator
specifies.
(5) After beginning plugging and abandonment,
an owner or operator or any other person author-
ized to perform plugging and abandonment may
request reimbursement for plugging and abandon-
ment expenditures by submitting itemized bills to
the Regional Administrator. Within 60 days after
receiving bills for plugging and abandonment ac-
tivities, the Regional Administrator will determine
whether the plugging and abandonment expendi-
tures are in accordance with the plugging and
abandonment plan or otherwise justified, and if so,
34
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§144.63
he will instruct the insurer to make reimbursement
in such amounts as the Regional Administrator
specifies in writing. If the Regional Administrator
has reason to believe that the cost of plugging and
abandonment will be significantly greater than the
face amount of the policy, he may withhold reim-
bursement of such amounts as he deems prudent
until he determines, in accordance with
§ 144.63(i), that the owner or operator is no longer
required to maintain financial assurance for plug-
ging and abandonment of the injection well.
(6) The owner or operator must maintain the
policy in full force and effect until the Regional
Administrator consents to termination of the policy
by the owner or operator as specified in paragraph
(e)(10) of this section. Failure to pay the premium,
without substitution of alternate financial assur-
ance as specified in this section, will constitute a
significant violation of these regulations, warrant-
ing such remedy as the Regional Administrator
deems necessary. Such violation will be deemed to
begin upon receipt by the Regional Administrator
of a notice of future cancellation, termination, or
failure to renew due to nonpayment of the pre-
mium, rather than upon the date of expiration.
(7) Each policy must contain provisions allow-
ing assignment to a successor owner or operator.
Such assignment may be conditional upon consent
of the insurer, provided such consent is not unrea-
sonably refused.
(8) The policy must provide that the insurer
may not cancel, terminate, or fail to renew the
policy except for failure to pay the premium. The
automatic renewal of the policy must, at a mini-
mum, provide the insured with the option of re-
newal at the face amount of the expiring policy.
If there is a failure to pay the premium, the insurer
may elect to cancel, terminate, or fail to renew the
policy by sending notice by certified mail to the
owner or operator and the Regional Administrator.
Cancellation, termination, or failure to renew may
not occur, however, during 120 days beginning
with the date of receipt of the notice by both the
Regional Administrator and the owner or operator,
as evidenced by the return of receipts. Cancella-
tion, termination, or failure to renew may not
occur and the policy will remain in full force and
effect in the event that on or before the date of ex-
piration:
(i) The Regional Administrator deems the injec-
tion well abandoned; or
(ii) The permit is terminated or revoked or a
new permit is denied; or
(iii) Plugging and abandonment is ordered by
the Regional Administrator or a U.S. district court
or other court of competent jurisdiction; or
(iv) The owner or operator is named as debtor
in a voluntary or involuntary proceeding under
title 11 (Bankruptcy), U.S. Code; or
(v) The premium due is paid.
(9) Whenever the current plugging and aban-
donment cost estimate increases to an amount
greater than the face amount of the policy, the
owner or operator, within 60 days after the in-
crease, must either cause the face amount to be in-
creased to an amount at least equal to the current
plugging and abandonment estimate and submit
evidence of such increase to the Regional Admin-
istrator, or obtain other financial assurance as
specified in this section to cover the increase.
Whenever the current plugging and abandonment
cost estimate decreases, the face amount may be
reduced to the amount of the current plugging and
abandonment cost estimate following written ap-
proval by the Regional Administrator.
(10) The Regional Administrator will give writ-
ten consent to the owner or operator that he may
terminate the insurance policy when:
(i) An owner or operator substitutes alternate fi-
nancial assurance as specified in this section; or
(ii) The Regional Administrator releases the
owner or operator from the requirements of this
section in accordance with § 144.63(i).
(f) Financial test and corporate guarantee for
plugging and abandonment. (1) An owner or oper-
ator may satisfy the requirements of this section
by demonstrating that he passes a financial test as
specified in this paragraph. To pass this test the
owner or operator must meet the criteria of either
paragraph (f)(l)(i) or (f)(l)((ii) of this section:
(i) The owner or operator must have:
(A) Two of the following three ratios: A ratio
of total liabilities to net worth less than 2.0; a ratio
of the sum of net income plus depreciation, deple-
tion, and amortization to total liabilities greater
than 0.1; and a ratio of current assets to current
liabilities greater than 1.5; and
(B) Net working capital and tangible net worth
each at least six times the sum of the current plug-
ging and abandonment cost estimate; and
(C) Tangible net worth of at least $10 million;
and
(D) Assets in the United States amounting to at
least 90 percent of his total assets or at least six
times the sum of the current plugging and aban-
donment cost estimate.
(ii) The owner or operator must have:
(A) A current rating for his most recent bond is-
suance of AAA, AA, A or BBB as issued by
Standard and Poor's or Aaa, Aa, A, or Baa as is-
sued by Moody's; and
(B) Tangible net worth at least six times the
sum of the current plugging and abandonment cost
estimate; and
(C) Tangible net worth of at least $10 million;
and
(D) Assets located in the United States amount-
ing to at least 90 percent of his total assets or at
35
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§144.63
least six times the sum of the current plugging and
abandonment cost estimates.
(2) The phrase "current plugging and abandon-
ment cost estimate" as used in paragraph (f)(l) of
this section refers to the cost estimate required to
be shown in paragraphs 1 through 4 of the letter
from the owner's or operator's chief financial offi-
cer § 144.70(f).
(3) To demonstrate that he meets this test, the
owner or operator must submit the following items
to the Regional Administrator:
(i) A letter signed by the owner's or operator's
chief financial officer and worded as specified in
§ 144.70(f); and
(ii) A copy of the independent certified public
accountant's report on examination of the owner's
or operator's financial statements for the latest
completed fiscal year; and
(iii) A special report from the owner's or opera-
tor's independent certified public accountant to the
owner or operator stating that:
(A) He has compared the data which the letter
from the chief financial officer specifies as having
been derived from the independently audited, year-
end financial statements for the latest fiscal year
with the amounts in such financial statements; and
(B) In connection with that procedure, no mat-
ters came to his attention which caused him to be-
lieve that the specified data should be adjusted.
(4) An owner or operator of a new injection
well must submit the items specified in paragraph
(f)(3) of this section to the Regional Administrator
within 90 days after the close of each succeeding
fiscal year. This information must consist of all
three items specified in paragraph (f)(3) of this
section.
(5) After the initial submission of items speci-
fied in paragraph (f)(3) of this section, the owner
or operator must send updated information to the
Regional Administrator within 90 days after the
close of each succeeding fiscal year. This informa-
tion must consist of all three items specified in
paragraph (f)(3) of this section.
(6) If the owner or operator no longer meets the
requirements of paragraph (f)(l) of this section, he
must send notice to the Regional Administrator of
intent to establish alternate financial assurance as
specified in this section. The notice must be sent
by certified mail within 90 days after the end of
the fiscal year for which the year-end financial
data show that the owner or operator no longer
meets the requirements. The owner or operator
must provide the alternate financial assurance
within 120 days after the end of such fiscal year.
(7) The Regional Administrator may, based on
a reasonable belief that the owner or operator may
no longer meet the requirements of paragraph
(f)(l) of this section, require reports of financial
condition at any time from the owner or operator
in addition to those specified in paragraph (f)(3) of
this section. If the Regional Administrator finds,
on the basis of such reports or other information,
that the owner or operator no longer meets the re-
quirements of paragraph (f)(l) of this section, the
owner or operator must provide alternate financial
assurance as specified in this section within 30
days after notification of such a finding.
(8) The Regional Administrator may disallow
use of this test on the basis of qualifications in the
opinion expressed by the independent certified
public accountant in his report on examination of
the owner's or operator's financial statements [see
paragraph (f)(3)(ii) of this section]. An adverse
opinion or disclaimer of opinion will be cause for
disallowance. The Regional Administrator will
evaluate other qualifications on an individual
basis. The owner or operator must provide alter-
nate financial assurance as specified in this section
within 30 days after notification of the disallow-
ance.
(9) The owner or operator is no longer required
to submit the items specified in paragraph (f)(3) of
this section when:
(i) An owner or operator substitutes alternate fi-
nancial assurance as specified in this section; or
(ii) The Regional Administrator releases the
owner or operator from the requirements of this
section in accordance with § 144.63(i).
(10) An owner or operator may meet the re-
quirements of this section by obtaining a written
guarantee, hereafter referred to as "corporate guar-
antee. '' The guarantee must be the parent corpora-
tion of the owner or operator. The guarantee must
meet the requirements for owners or operators in
paragraphs (f)(l) through (f)(8) of this section and
must comply with the terms of the corporate guar-
antee. The wording of the corporate guarantee
must be identical to the wording specified in
§ 144.70(h). The corporate guarantee must accom-
pany the items sent to the Regional Administrator
as specified in paragraph (f)(3) of this section. The
terms of the corporate guarantee must provide
that:
(i) If the owner or operator fails to perform
plugging and abandonment of the injection well
covered by the corporate guarantee in accordance
with the plugging and abandonment plan and other
permit requirements whenever required to do so,
the guarantee will do so or establish a trust fund
as specified in § 144.63(a) in the name of the
owner or operator.
(ii) The corporate guarantee will remain in force
unless the guarantor sends notice of cancellation
by certified mail to the owner or operator and the
Regional Administrator, as evidenced by the return
receipts. Cancellation may not occur, however,
during the 120 days beginning on the date of re-
ceipt of the notice of cancellation by both the
36
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§144.65
owner or operator and the Regional Administrator,
as evidenced by the return receipts.
(iii) If the owner or operator fails to provide al-
ternate financial assurance as specified in this sec-
tion and obtain the written approval of such alter-
nate assurance from the Regional Administrator
within 90 days after receipt by both the owner or
operator and the Regional Administrator of a no-
tice of cancellation of the corporate guarantee
from the guarantor, the guarantor will provide
such alternative financial assurance in the name of
the owner or operator.
(g) Use of multiple financial mechanisms. An
owner or operator may satisfy the requirements of
this section by establishing more than one finan-
cial mechanism per injection well. These mecha-
nisms are limited to trust funds, surety bonds,
guaranteeing payment into a trust fund, letters of
credit, and insurance. The mechanisms must be as
specified in paragraphs (a), (b), (d), and (e), re-
spectively, of this section, except that it is the
combination of mechanisms, rather than the single
mechanism, which must provide financial assur-
ance for an amount at least equal to the adjusted
plugging and abandonment cost. If an owner or
operator uses a trust fund in combination with a
surety bond or letter of credit, he may use that
trust fund as the standby trust fund for the other
mechanisms. A single standby trust may be estab-
lished for two or more mechanisms. The Regional
Administrator may invoke any or all of the mecha-
nisms to provide for plugging and abandonment of
the injection well.
(h) Use of a financial mechanism for multiple
facilities. An owner or operator may use a finan-
cial assurance mechanism specified in this section
to meet the requirements of this section for more
than one injection well. Evidence of financial as-
surance submitted to the Regional Administrator
must include a list showing, for each injection
well, the EPA Identification Number, name, ad-
dress, and the amount of funds for plugging and
abandonment assured by the mechanism. If the in-
jection wells covered by the mechanism are in
more than one Region, identical evidence of finan-
cial assurance must be submitted to and main-
tained with the Regional Administrators of all
such Regions. The amount of funds available
through the mechanism must be no less than the
sum of funds that would be available if a separate
mechanism had been established and maintained
for each injection well. In directing funds available
through the mechanism for plugging and abandon-
ment of any of the injection wells covered by the
mechanism, the Regional Administrator may direct
only the amount of funds designated for that injec-
tion well, unless the owner or operator agrees to
use additional funds available under the mecha-
(i) Release of the owner or operator from the
requirements of this section. Within 60 days after
receiving certifications from the owner or operator
and an independent registered professional engi-
neer that plugging and abandonment has been ac-
complished in accordance with the plugging and
abandonment plan, the Regional Administrator
will notify the owner or operator in writing that he
is no longer required by this section to maintain
financial assurance for plugging and abandonment
of the injection well, unless the Regional Adminis-
trator has reason to believe that plugging and
abandonment has not been in accordance with the
plugging and abandonment plan.
§ 144.64 Incapacity of owners or opera-
tors, guarantors, or financial insti-
tutions.
(a) An owner or operator must notify the Re-
gional Administrator by certified mail of the com-
mencement of a voluntary or involuntary proceed-
ing under title 11 (Bankruptcy), U.S. Code, nam-
ing the owner or operator as debtor, within 10
business days after the commencement of the pro-
ceeding. A guarantor of a corporate guarantee as
specified in § 144.63(f) must make such a notifica-
tion if he is named as debtor, as required under
the terms of the guarantee (§ 144.70(f)).
(b) An owner or operator who fulfills the re-
quirements of § 144.63 by obtaining a letter of
credit, surety bond, or insurance policy will be
deemed to be without the required financial assur-
ance or liability coverage in the event of bank-
ruptcy, insolvency, or a suspension or revocation
of the license or charter of the issuing institution.
The owner or operator must establish other finan-
cial assurance or liability coverage within 60 days
after such an event.
§144.65 Use of State-required mecha-
nisms.
(a) For a facility located in a State where EPA
is administering the requirements of this subpart
but where the State has plugging and abandonment
regulations that include requirements for financial
assurance of plugging and abandonment, an owner
or operator may use State-required financial mech-
anisms to meet the requirements of this subpart if
the Regional Administrator determines that the
State mechanisms are at least equivalent to the
mechanisms specified in this subpart. The Re-
gional Administrator will evaluate the equivalency
of the mechanisms mainly in terms of (1) certainty
of the availability of funds for the required plug-
ging and abandonment activities and (2) the
amount of funds that will be made available. The
Regional Administrator may also consider other
factors. The owner or operator must submit to the
Regional Administrator evidence of the establish-
37
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§144.66
ment of the mechanism together with a letter re-
questing that the State-required mechanism be
considered acceptable for meeting the require-
ments of this subpart. The submittal must include
the following information: The facility's EPA
Identification Number, name and address, and the
amounts of funds for plugging and abandonment
coverage assured by the mechanism. The Regional
Administrator will notify the owner or operator of
his determination regarding the mechanism's ac-
ceptability. The Regional Administrator may re-
quire the owner or operator to submit additional
information as is deemed necessary for making
this determination.
(b) If a State-required mechanism is found ac-
ceptable as specified in paragraph (a) of this sec-
tion except for the amount of funds available, the
owner or operator may satisfy the requirements of
this subpart by increasing the funds available
through the State-required mechanism or using ad-
ditional mechanisms as specified in this subpart.
The amounts of funds available through the State
and Federal mechanisms must at least equal the
amounts required by this subpart.
§144.66 State assumption of respon-
sibility.
(a) If a State either assumes legal responsibility
for an owner's or operator's compliance with the
plugging and abandonment requirements of these
regulations or assures that funds will be available
from State sources to cover these requirements, the
owner or operator will be in compliance with the
requirements of this subpart if the Regional Ad-
ministrator determines that the State's assumption
of responsibility is at least equivalent to the mech-
anisms specified in this subpart. The Regional Ad-
ministrator will evaluate the equivalency of State
guarantees mainly in terms of (1) certainty of the
availability of funds for the required plugging and
abandonment coverage and (2) the amount of
funds that will be made available. The Regional
Administrator may also consider other factors. The
owner or operator must submit to the Regional
Administrator a letter from the State describing the
nature of the State's assumption of responsibility
together with a letter from the owner or operator
requesting that the State's asumption of respon-
sibility be considered acceptable for meeting the
requirements of this subpart. The letter from the
State must include, or have attached to it, the fol-
lowing information: the facility's EPA Identifica-
tion Number, name and address, and the amounts
of funds for plugging and abandonment coverage
that are guaranteed by the State. The Regional Ad-
ministrator will notify the owner or operator of his
determination regarding the acceptability of the
State's guarantee in lieu of mechanisms specified
in this subpart. The Regional Administrator may
require the owner or operator to submit additional
information as is deemed necessary to make this
determination. Pending this determination, the
owner or operator will be deemed to be in compli-
ance with § 144.63.
(b) If a State's assumption of responsibility is
found acceptable as specified in paragraph (a) of
this section except for the amount of funds avail-
able, the owner or operator may satisfy the re-
quirements of this subpart by use of both the
State's assurance and additional financial mecha-
nisms as specified in this subpart. The amount of
funds available through the State and Federal
mechanisms must at least equal the amount re-
quired by this subpart.
§ 144.70 Wording of the instruments.
(a)(l) A trust agreement for a trust fund, as
specified in § 144.63(a) of this chapter, must be
worded as follows, except that instructions in
brackets are to be replaced with the relevant infor-
mation and the brackets deleted:
TRUST AGREEMENT
TRUST AGREEMENT, the "Agreement," entered into
as of [date] by and between [name of the owner or opera-
tor], a [name of State] [insert "corporation," "partner-
ship," "association," or "proprietorship"], the "Grant-
or," and [name of corporate trustee], [insert "incor-
porated in the State of " or "a national bank"],
the "Trustee."
Whereas, the United States Environmental Protection
Agency, "EPA," an agency of the United States Govern-
ment, has established certain regulations applicable to the
Grantor, requiring that an owner or operator of an injec-
tion well shall provide assurance that funds will be avail-
able when needed for plugging and abandonment of the
injection well,
Whereas, the Grantor has elected to establish a trust to
provide all or part of such financial assurance for the
facility(ies) identified herein,
Whereas, the Grantor, acting through its duly author-
ized officers, has selected the Trustee to be the trustee
under this agreement, and the Trustee is willing to act as
trustee,
Now, therefore, the Grantor and the Trustee agree as
follows:
Section 1. Definitions. As used in this Agreement:
(a) The term "Grantor" means the owner or operator
who enters into this Agreement and any successors or as-
signs of the Grantor.
(b) The term "Trustee" means the Trustee who enters
into this Agreement and any successor Trustee.
(c) Facility or activity means any "underground injec-
tion well" or any other facility or activity that is subject
to regulation under the Underground Injection Control
Program.
Section 2. Identification of Facilities and Cost Esti-
mates. This Agreement pertains to the facilities and cost
estimates identified on attached Schedule A [on Schedule
A, for each facility list the EPA Identification Number,
name, address, and the current plugging and abandonment
cost estimate, or portions thereof, for which financial as-
surance is demonstrated by this Agreement].
38
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§144.70
Section 3. Establishment of Fund. The Grantor and the
Trustee hereby establish a trust fund, the "Fund," for the
benefit of EPA. The Grantor and the Trustee intend that
no third party have access to the Fund except as herein
provided. The Fund is established initially as consisting of
the property, which is acceptable to the Trustee, described
in Schedule B attached hereto. Such property and any
other property subsequently transferred to the Trustee is
referred to as the Fund, together with all earnings and
profits thereon, less any payments or distributions made
by the Trustee pursuant to this Agreement. The Fund
shall be held by the Trustee, IN TRUST, as hereinafter
provided. The Trustee shall not be responsible nor shall
it undertake any responsibility for the amount or ade-
quacy of, nor any duty to collect from the Grantor, any
payments necessary to discharge any liabilities of the
Grantor established by EPA.
Section 4. Payment for Plugging and Abandonment.
The Trustee shall make payments from the Fund as the
EPA Regional Administrator shall direct, in writing, to
provide for the payment of the costs of plugging and
abandonment of the injection wells covered by this
Agreement. The Trustee shall reimburse the Grantor or
other persons as specified by the EPA Regional Adminis-
trator from the Fund for plugging and abandonment ex-
penditures in such amounts as the EPA Regional Admin-
istrator shall direct in writing. In addition, the Trustee
shall refund to the Grantor such amounts as the EPA Re-
gional Administrator specifies in writing. Upon refund,
such funds shall no longer constitute part of the Fund as
defined herein.
Section 5. Payments Comprising the Fund. Payments
made to the Trustee for the Fund shall consist of cash or
securities acceptable to the Trustee.
Section 6. Trustee Management. The Trustee shall in-
vest and reinvest the principal and income of the Fund
and keep the Fund invested as a single fund, without dis-
tinction between principal and income, in accordance with
general investment policies and guidelines which the
Grantor may communicate in writing to the Trustee from
time to time, subject, however, to the provisions of this
Section. In investing, reinvesting, exchanging, selling, and
managing the Fund, the Trustee shall discharge his duties
with respect to the trust fund solely in the interest of the
beneficiary and with the care, skill, prudence, and dili-
gence under the circumstances then prevailing which per-
sons of prudence, acting in a like capacity and familiar
with such matters, would use in the conduct of an enter-
prise of a like character and with like aims; except that
(i) Securities or other obligations of the Grantor, or any
other owner or operator of the facilities, or any of their
affiliates as defined in the Investment Company Act of
1940, as amended, 15 U.S.C. 80a-2.(a), shall not be ac-
quired or held, unless they are securities or other obliga-
tions of the Federal or a State government;
(ii) The Trustee is authorized to invest the Fund in time
or demand deposits of the Trustee, to the extent insured
by an agency of the Federal or State government; and
(iii) The Trustee is authorized to hold cash awaiting in-
vestment or distribution uninvested for a reasonable time
and without liability for the payment of interest thereon.
Section 7. Commingling and Investment. The Trustee is
expressly authorized in its discretion:
(a) To transfer from time to time any or all of the as-
sets of the Fund to any common, commingled, or collec-
tive trust fund created by the Trustee in which the Fund
is eligible to participate, subject to all of the provisions
thereof, to be commingled with the assets of other trusts
participating therein; and
(b) To purchase shares in any investment company reg-
istered under the Investment Company Act of 1940, 15
U.S.C. 80a-l et seq., including one which may be cre-
ated, managed, underwritten, or to which investment ad-
vice is rendered or the shares of which are sold by the
Trustee. The Trustee may vote shares in its discretion.
Section 8. Express Powers of Trustee. Without in any
way limiting the powers and discretions conferred upon
the Trustee by the other provisions of this Agreement or
by law, the Trustee is expressly authorized and empow-
ered:
(a) To sell, exchange, convey, transfer, or otherwise
dispose of any property held by it, by public or private
sale. No person dealing with the Trustee shall be bound
to see to the application of the purchase money or to in-
quire into the validity or expediency of any such sale or
other disposition;
(b) To make, execute, acknowledge, and deliver any
and all documents of transfer and conveyance and any
and all other instruments that may be necessary or appro-
priate to carry out the powers herein granted;
(c) To register any securities held in the Fund in its
own name or in the name of a nominee and to hold any
security in bearer form or in book entry, or to combine
certificates representing such securities with certificates of
the same issue held by the Trustee in other fiduciary ca-
pacities, or to deposit or arrange for the deposit of such
securities in a qualified central depository even though,
when so deposited, such securities may be merged and
held in bulk in the name of the nominee of such deposi-
tary with other securities deposited therein by another per-
son, or to deposit or arrange for the deposit of any securi-
ties issued by the United States Government, or any agen-
cy or instrumentality thereof, with a Federal Reserve
bank, but the books and records of the Trustee shall at
all times show that all such securities are part of the
Fund;
(d) To deposit any cash in the Fund in interest-bearing
accounts maintained or savings certificates issued by the
Trustee, in its separate corporate capacity, or in any other
banking institution affiliated with the Trustee, to the ex-
tent insured by an agency of the Federal or State govern-
ment; and
(e) To compromise or otherwise adjust all claims in
favor of or against the Fund.
Section 9. Taxes and Expenses. All taxes of any kind
that may be assessed or levied against or in respect of the
Fund and all brokerage commissions incurred by the Fund
shall be paid from the Fund. All other expenses incurred
by the Trustee in connection with the administration of
this Trust, including fees for legal services rendered to the
Trustee, the compensation of the Trustee to the extent not
paid directly by the Grantor, and all other proper charges
and disbursements of the Trustee shall be paid from the
Fund.
Section 10. Annual Valuation. The Trustee shall annu-
ally, at least 30 days prior to the anniversary date of es-
tablishment of the Fund, furnish to the Grantor and to the
appropriate EPA Regional Administrator a statement con-
firming the value of the Trust. Any securities in the Fund
shall be valued at market value as of no more than 60
days prior to the anniversary date of establishment of the
Fund. The failure of the Grantor to object in writing to
the Trustee within 90 days after the statement has been
furnished to the Grantor and the EPA Regional Adminis-
39
-------
§144.70
trator shall constitute a conclusively binding assent by the the Grantor, the Trustee, and the appropriate EPA Re-
Grantor, barring the Grantor from asserting any claim or gional Administrator, or by the Trustee and the appro-
liability against the Trustee with respect to matters dis- priate EPA Regional Administrator if the Grantor ceases
closed in the statement. to exist.
Section 11. Advice of Counsel. The Trustee may from Section 17. Irrevocability and Termination. Subject to
time to time consult with counsel, who may be counsel the right of the parties to amend this Agreement as pro-
to the Grantor, with respect to any question arising as to vided in Section 16, this Trust shall be irrevocable and
the construction of this Agreement of any action to be shall continue until terminated at the written agreement of
taken hereunder. The Trustee shall be fully protected, to the Grantor, the Trustee, and the EPA Regional Admims-
the extent permitted by law, in acting upon the advice of trator, or by the Trustee and the EPA Regional Admims-
counsel. trator if the Grantor ceases to exist. Upon termination of
Section 12. Trustee Compensation. The Trustee shall be the Trust, all remaining trust property, less final trust ad-
entitled to reasonable compensation for its services as ministration expenses, shall be delivered to the Grantor.
agreed upon in writing from time to time with the Grant- Section 18. Immunity and Indemnification. The Trustee
or- shall not incur personal liability of any nature in connec-
Section 13. Successor Trustee. The Trustee may resign tion with any act or omission, made in good faith, in the
or the Grantor may replace the Trustee, but such resigna- administration of this Trust, or in carrying out any direc-
tion or replacement shall not be effective until the Grantor tions by the Grantor or the EPA Regional Administrator
has appointed a successor trustee and this successor ac- lssued m accordance wlm this Agreement. The Trustee
cepts the appointment. The successor trustee shall have shall be mdemmfied and saved harmless by the Grantor
the same powers and duties as those conferred upon the or from the Tmst Fund) or both> from and agamst any
Trustee hereunder. Upon the successor trustee's accept- personal llablllty to which the Trustee may be subjected
ance of the appointment, the Trustee shall assign, transfer, by reason of any act or conduct m lts offlclai capaclty
and pay over to the successor trustee the funds and prop- mcludmg all expenses reasonably incurred m its defense
erties then constituting the Fund. If for any reason the m the evmt the Grantor falk to provlde such defense
Grantor cannot or does not act m the event of the resigna- Section ;fl choice gf ^ Tbjs Agreement shall be
tion of the Trustee, the Trustee may apply to a court of administered> coristmed, and enforced according to the
competent jurisdiction for the appointment of a successor [aws rf ^ state rf [msert Mme rf state]
trustee or for instructions. The successor trustee shall SecUon m Int tation_ As used m thls Agreement,
specify the date on which it assumes administration of the wQrds m ^ si ^ mdude ^ ^ ^ wQrds m ^
trust m a writing sent to the Grantor, the EPA Regional [ural mdude ^ sl [ar The descri tive headl for
Administrator, and the present Trustee by certified mail each SectiQn rf ^ A ent shall not affect the mter.
10 days before such change becomes effective. Any ex- Qn Qr ^ effi rf ^ A ent
penses incurred by the Trustee as a result of any of the T ,,,., „,, r,., ,- , , ,., • A
r , , , , • ^ • , ,, , • , In Witness Whereof the parties have caused this Agree-
acts contemplated by this Section shall be paid as pro- mmt tQ fee executed ^ tive officers dul au_
vided m Section 9. ,.,,,. 111 ^- 1
r, . , , r . , „ A 11 1 thonzed and their corporate seals to be hereunto affixed
Section 14. Instructions to the Trustee. All orders, re- . ,,,,„., . _t
j . , i 4.1 /-< 4. 4. 4.1 T- 4. and attested as of the date first above written. The parties
quests, and instructions by the Grantor to the Trustee ,, -^ 1 1 1- ^ i- * • -i
shall be m writing, signed by such persons as are des- bel°w "f^ ^ the wording of this Agreement is iden-
. , . ., .. B; ."L ,.,.-; , F , ., , . tical to the wording specified m 40 CFR 144.70(a)(l) as
ignated m the attached Exhibit A or such other designees , ,. tor . , ,, ^ J •/
as the Grantor may designate by amendment to Exhibit A. s™^ulatlons were c°nstltuted ™ the date flrst above
The Trustee shall be fully protected in acting without in-
quiry in accordance with the Grantor's orders, requests, [Signature of Grantor]
and instructions. All orders, requests, and instructions by By [Title]
the EPA Regional Administrator to the Trustee shall be Attest:
in writing, signed by the EPA Regional Administrators of .
the Regions in which the facilities are located, or their ^ *
designees, and the Trustee shall act and shall be fully pro- [Seall
tected in acting in accordance with such orders, requests,
and instructions. The Trustee shall have the right to as- [Signature of Trustee]
sume, in the absence of written notice to the contrary, that By
no event constituting a change or a termination of the au- Attest:
thority of any person to act on behalf of the Grantor or .
EPA hereunder has occurred. The Trustee shall have no L : eJ
duty to act in the absence of such orders, requests, and [Seal!
instructions from the Grantor and/or EPA, except as pro-
vided for herein. (2) The following is an example of the certifi-
Section 15. Notice of Nonpayment. The Trustee shall cation of acknowledgment which must accompany
notify the Grantor and the appropriate EPA Regional Ad- the trust agreement for a trust fund as specified in
mimstrator, by certified mail within 10 days following the § 144.63(a). State requirements may differ on the
expiration of the 30-day period after the anniversary of prOper content of this acknowledgment.
the establishment of the Trust, if no payment is received
from the Grantor during that period. After the pay-in pe- State 01
nod is completed, the Trustee shall not be required to County of
send a notice of nonpayment. On this [date], before me personally came [owner or
Section 16. Amendment of Agreement. This Agreement operator] to me known, who, being by me duly sworn,
may be amended by an instrument in writing executed by did depose and say that she/he resides at [address], that
40
-------
§144.70
she/he is [title] of [corporation], the corporation described Or, if the Principal shall provide alternate financial as-
in and which executed the above instrument; that she/he surance, as specified in subpart F of 40 CFR part 144, as
knows the seal of said corporation; that the seal affixed applicable, and obtain the EPA Regional Administrator's
to such instrument is such corporate seal; that it was so written approval of such assurance, within 90 days after
affixed by order to the Board of Directors of said cor- the date of notice of cancellation is received by both the
poration, and that she/he signed her/his name thereto by Principal and the EPA Regional Administrator(s) from the
like order. Surety(ies), then this obligation shall be null and void,
[Signature of Notary Public] otherwise it is to remain in full force and effect.
The Surety(ies) shall become liable on this bond obli-
(b) A surety bond guaranteeing payment into a gation only when the Principal has failed to fulfill the
trust fund, as specified in § 144.63 of this chapter, conditions described above. Upon notification by an EPA
must be worded as follows, except that instruc- Regional Administrator that the Principal has failed to
tions in brackets are to be replaced with the rel- perform as guaranteed by this bond, the Surety(ies) shall
evant information and the brackets deleted: Place funds m the amount guaranteed for the injection
well(s) into the standby trust funds as directed by the
FINANCIAL GUARANTEE BOND EPA Regional Administrator.
, , , , The liability of the Surety(ies) shall not be discharged
Dated bond executed: , , r , , ,
. by any payment or succession oi payments hereunder, un-
. , r' , , • , , <* less and until such payment or payments shall amount in
Principal: [legal name and business address of owner or ,, , , ,-, i .r 4.1 i j i 4. •
f L ° the aggregate to the penal sum ol the bond, but in no
operator . 4.1114.1 11- ,.• c 4.1 o *. /• \ 1 j
_, _- . . r. tt. .....,, tt. . event shall the obligation oi the Surety(les) hereunder ex-
Type of organization: [insert individual, lomt ven- , , ,, . , ,
, . . ., ceed the amount of said penal sum.
ture, partnership, or corporation 1. ™ „ , ,. , , ,, , , , ,.
r . r J The Surety(ies) may cancel the bond by sending notice
Mate ol incorporation: —- - - — of cancellatlon b certified mail to the Principal and to
Surety(ies): name(s) and business address(es) . . __ , _, . ,,,-• , -. c 1 T, • .• •. •
T.T.A Ti -r- • (T 1 nil the EPA Regional Administrator(s) for the Region(s) in
EPA Identification Number, name, address, and plug- , . , , . . . ,,, , . . ' , , ° • , ,
... ,,„ , r- -1- which the injection well(s) is (are) located, provided,
gmg and abandonment amount(s) for each facility guaran- , , , ,, . , ,, , • ,
7 , . . . , r- 1- 1 • 111 however, that that cancellation shall not occur during the
teed by this bond indicate plugging and abandonment , _ _ . . . . c . , . .
J , , L F && & J20 days beginning on the date of receipt of the notice
amounts separately]: , ,,,.•,,,,,, ^ • • 1 j .1 T^A -r,
rT , i i .r i j • •> -i- • • i- 1 1 i- • r 1-1 -i- penal sum does not increase by more than 20 percent in
il no limit oi liability is indicated, the limit ol liability , , . ., i 4. i
......... c . . any one year, and no decrease in the penal sum takes
shall be the full amount of the penal sum. .J . / - . . . , J „_,._,.
,,n ... . place without the written permission ol the EPA Regional
Whereas said Principal is required, under the Under- . . . . , ,
1 T • • ^ IT, i • /TTT/~,^ 1 Administrator (s).
ground Iniection Control Regulations (UIC), to have a T ,,,.. ,/„ ,, . _ . . . . _ ,. , .
.... . .. In Witness Whereoi, the Principal and Surety(ies) have
permit or comply with requirements to operate under rule , , . „. . , _ r_ , , , „,. ,
. . . . . ,,.,.,., executed this Financial Guarantee Bond and have affixed
in order to own or operate each injection well identilied . . . . . , . .
, , their seals on the date set forth above.
above, and „, , 1111
,,' . . _ . . . . . . . . n. . . The persons whose signatures appear below hereby cer-
Whereas said Principal is required to provide Imancial ., . . . . . . . .
c , .I^11^1 r ,.. _ tify that they are authorized to execute this surety bond
assurance for plugging and abandonment as a condition of ,,,,->-, -^ • • 1 1 ^ /• •-. 11 1
, . ^ && .* j i j on behalf of the Principal and Surety(ies) and that the
the permit or provisions to operate under rule, and ,. ,, , . , , • • , 11 1-
,-,,. .,_..,,„ .... .. wording of this surety bond is identical to the wording
Whereas said Principal shall establish a standby trust .,. . . ., ^__ , . . _,,. , . . .
^,. .,, 11- 1-1 specified in 40 CFR 144.70(b) as such regulations were
fund as is required when a surety bond is used to provide . . . . . . . . .
,,,.., constituted on the date this bond was executed.
such Imancial assurance;
Now, therefore, the conditions of the obligation are Principal
such that if the Principal shall faithfully, before the begin-
ning of plugging and abandonment of each injection well [Signature(s)]
identified above, fund the standby trust fund in the [Name(s)]
amount(s) identified above for the injection well, [Title(s)J
Or if the Principal shall fund the standby trust fund in [Corporate seal]
such amount(s) within 15 days after an order to begin _ ,. ,
1 • j i j 4. • • j 1 T-T.A T, • i Corporate Surety(ies)
plugging and abandonment is issued by an EPA Regional
Administrator or a U.S. district court or other court of [Name and address]
competent jurisdiction, State of incorporation: .
41
-------
§144.70
Liability limit: $ . be amended, pursuant to all applicable laws, statutes,
[Signature(s)] rules and regulations, as such laws, statutes, rules, and
[Name(s) and title(s)] regulations may be amended,
[Corporate seal] Or, if the Principal shall provide alternate financial as-
[For every co-surety, provide signature(s), corporate seal, surance as specified in subpart F of 40 CFR part 144, and
and other information in the same manner as for Surety obtain the EPA Regional Administrator's written approval
above.] of such assurance, within 90 days after the date of notice
Bond premium: $ . of cancellation is received by both the Principal and the
. EPA Regional Administrator(s) from the Surety(ies), then
(c) A surety bond guaranteeing performance of thls obllgatlon shall be null and void> otherwlse lt ls to
plugging and abandonment, as specified in remam m full force and effect.
§ 144.63(c), must be worded as follows, except The Surety(ies) shall become liable on this bond obh-
that the instructions in brackets are to be replaced gation only when the Principal has failed to fulfill the
with the relevant information and the brackets de- conditions described above.
i I j. Upon notification by an EPA Regional Administrator
that the Principal has been found in violation of the plug-
PERFORMANCE BOND ging and abandonment requirements of 40 CFR part 144,
for an injection well which this bond guarantees perform-
Date bond executed: . ances of piuggmg ancj abandonment, the Surety(ies) shall
ec ive a e. . either perform plugging and abandonment in accordance
Principal: [legal name and business address of owner or m± ±e pluggmg and abandonment plan and other permit
operator]. requirements or provisions for operating under rule and
Type of organization: [insert "individual," "joint ven- Qther requlrements or place the amount for plugging and
tare," "partnership," or "corporation"]. abandonment into a standby trust fund as directed by the
State of incorporation: . EpA Reglonal Administrator.
Surety(ies): [name(s) and business address(es)] Upon notification by an EPA Reglonal Administrator
that the Principal has failed to provide alternate financial
EPA Identification Number, name, address, and plug- assurance as specified in subpart F of 40 CFR part 144,
gmg and abandonment amounts(s) for each injection well and obtam wntten approvai of such assurance from the
guaranteed by this bond [indicate plugging and abandon- EPA Regional Admimstrator(s) during the 90 days fol-
ment amounts for each well]: lowing receipt by both the Principal and the EPA Re-
gional Administrator(s) of a notice of cancellation of the
Total penal sum of bond: $ . bond, the Surety(ies) shall place funds in the amount
Surety's bond number: . guaranteed for the injection well(s) into the standby trust
Know All Persons By These Presents, That We, the f^d as directed by the EPA Reglonal Administrator.
Principal and Surety(ies) hereto are firmly bound to the The surety(ies) hereby waive(s) notification of amend-
U.S. Environmental Protection Agency [hereinafter called ments to plugging and abandonment plans, permits, appli-
EPA], in the above penal sum for the payment of which cable laws, statutes, rules, and regulations and agrees that
we bind ourselves, our heirs, executors, administrators, no such amendment shall in any way alleviate its (their)
successors, and assigns jointly and severally; provided obligation on this bond.
that, where the Surety(ies) are corporations acting as co- The liability of the Surety(ies) shall not be discharged
sureties, we, the Sureties, bind ourselves in such sum by any payment or succession of payments hereunder, un-
"jomtly and severally" only for the purpose of allowing less and until such payment or payments shall amount in
a joint action or actions against any or all of us, and for the aggregate to the penal sum of the bond, but in no
all other purposes each Surety binds itself, jointly and event shall the obligation of the Surety(ies) hereunder ex-
severally with the Principal, for the payment of such sum ceed the amount of said penal sum.
only as is set forth opposite the name of such Surety, but The Surety(ies) may cancel the bond by sending notice
if no limit of liability is indicated, the limit of liability by certified mail to the owner or operator and to the EPA
shall be the full amount of the penal sum. Reglonal Admimstrator(s) for the Region(s) in which the
Whereas said Principal is required, under the injection well(s) is (are) located, provided, however, that
Undergound Injection Control Regulations, as amended, cancellation shall not occur during the 120 days begin-
to have a permit or comply with provisions to operate nmg on the date of receipt of the notice of cancellation
under rule for each injection well identified above, and by both the Principal and the EPA Regional
Whereas said Principal is required to provide financial Admimstrator(s), as evidenced by the return receipts.
assurance for plugging and abandonment as a condition of The principal may terminate this bond by sending writ-
the permit or approval to operate under rule, and ten notice to the Surety(ies), provided, however, that no
Whereas said Principal shall establish a standby trust such notice shall become effective until the Surety(ies)
fund as is required when a surety bond is used to provide receive(s) written authorization for termination of the
such financial assurance; bond by the EPA Regional Administrator(s) of the EPA
Now, Therefore, the conditions of this obligation are Region(s) in which the bonded injection well(s) is (are)
such that if the Principal shall faithfully perform plugging located.
and abandonment, whenever required to do so, of each in- [The following paragraph is an optional rider that may
jection well for which this bond guarantees plugging and be included but is not required.]
abandonment, in accordance with the plugging and aban- Principal and Surety(ies) hereby agree to adjust the
donment plan and other rquirements of the permit or pro- penal sum of the bond yearly so that it guarantees a new
visions for operating under rule and other requirements of plugging and abandonment amount, provided that the
the permit or provisions for operating under rule as may penal sum does not increase by more than 20 percent in
42
-------
§144.70
any one year, and no decrease in the penal sum takes
place without the written permission of the EPA Regional
Administrator (s ).
In Witness Whereof, The Principal and Surety(ies) have
executed this Performance Bond and have affixed their
seals on the date set forth above.
The persons whose signatures appear below hereby cer-
tify that they are authorized to execute this surety bond
on behalf of the Principal and Surety(ies) and that the
wording on this surety bond is identical to the wording
specified in 40 CFR 144.70(c) as such regulation was
constituted on the date this bond was executed.
Principal.
[Signature(s)]
[Name(s)]
[Title(s)]
[Corporate seal]
[Corporate Surety(ies)]
[Name and address]
State of incorporation:
Liability limit: $ .
[Signature(s)]
[Name(s) and title(s)]
Corporate seal:
[For every co-surety, provide signature(s), corporate seal,
and other information in the same manner as for Surety
above.]
Bond premium: $ .
(d) A letter of credit, as specified in § 144.63(d)
of this chapter, must be worded as follows, except
that instructions in brackets are to be replaced
with the relevant information and the brackets de-
leted:
IRREVOCABLE STANDBY LETTER OF CREDIT
Regional Administrator (s)
Region(s)
U.S. Environmental Protection Agency.
Dear Sir or Madam:
We hereby establish our Irrevocable Standby Letter of
Credit No. in your favor, at the request and for
the account of [owner's or operator's name and address]
up to the aggregate amount of [in words] U.S. dollars
$ , available upon presentation [insert, if more than
one Regional Administrator is a beneficiary, "by any one
of you"] of
(1) Your sight draft, bearing reference to this letter of
credit No. , and
(2) Your signed statement reading as follows: "I certify
that the amount of the draft is payable pursuant to regula-
tions issued under authority of the Safe Drinking Water
Act."
This letter of credit is effective as of [date] and shall
expire on [date at least 1 year later], but such expiration
date shall be automatically extended for a period of [at
least 1 year] on [date] and on each successive expiration
date, unless, at least 120 days before the current expira-
tion date, we notify both you and [owner's or operator's
name] by certified mail that we have decided not to ex-
tend this letter of credit beyond the current expiration
date. In the event you are so notified, any unused portion
of the credit shall be available upon presentation of your
sight draft for 120 days after the date of receipt by both
you and [owner's or operator's name], as shown on the
signed return receipts.
Whenever this letter of credit is drawn on under and
in compliance with the terms of this credit, we shall duly
honor such draft upon presentation to us, and we shall de-
posit the amount of the draft directly into the standby
trust fund of [owner's or operator's name] in accordance
with your instructions.
We certify that the wording of this letter of credit is
identical to the wording specified in 40 CFR 144.70(d) as
such regulations were constituted on the date shown im-
mediately below.
[Signature(s) and title(s) of official(s) of issuing institu-
tion]
[Date]
This credit is subject to [insert "the most recent edition
of the Uniform Customs and Practice for Documentary
Credits, published and copyrighted by the International
Chamber of Commerce," or "the Uniform Commercial
Code"].
(e) A certificate of insurance, as specified in
§ 144.63(e) of this chapter, must be worded as fol-
lows, except that instructions in brackets are to be
replaced with the relevant information and the
brackets deleted:
Certificate of Insurance for Plugging and Abandonment
Name and Address of Insurer (herein called the "in-
surer"):
Name and Address of Insurer (herein called the "in-
surer"):
Injection Wells covered: [list for each well: The EPA
Identification Number, name, address, and the amount of
insurance for plugging and abandonment (these amounts
for all injection wells covered must total the face amount
shown below).]
Face Amount:
Policy Number:
Effective Date:
The insurer hereby certifies that it has issued to the In-
sured the policy of insurance identified above to provide
financial assurance for plugging and abandonment for the
injection wells identified above. The Insurer further war-
rants that such policy conforms in all respects with the re-
quirements of 40 CFR 144.63(e), as applicable and as
such regulations were constituted on the date shown im-
mediately below. It is agreed that any provision of the
policy inconsistent with such regulations is hereby
amended to eliminate such inconsistency.
Whenever requested by the EPA Regional
Administrator (s) of the U.S. Environmental Protection
Agency, the Insurer agrees to furnish to the EPA Re-
gional Administrator(s) a duplicate original of the policy
listed above, including all endorsements thereon.
I hereby certify that the wording of this certificate is
identical to the wording specified in 40 CFR 144.70(e) as
such regulations were constituted on the date shown im-
mediately below.
[Authorized signature of Insurer]
[Name of person signing]
[Title of person signing]
[Signature of witness or notary:]
[Date]
(f) A letter from the chief financial officer, as
specified in § 144.63(f) of this chapter, must be
worded as follows, except that instructions in
43
-------
§144.70
brackets are to be replaced with the relevant infor-
mation and the brackets deleted:
LETTER FROM CHIEF FINANCIAL OFFICER
[Address to Regional Administrator of every Region in
which injection wells for which financial responsibility is
to be demonstrated through the financial test are located.]
I am the chief financial officer of [name and address
of firm. ] This letter is in support of this firm's use of the
financial test to demonstrate financial assurance, as speci-
fied in subpart F of 40 CFR part 144.
[Fill out the following four paragraphs regarding injec-
tion wells and associated cost estimates. If your firm has
no injection wells that belong in a particular paragraph,
write "None" in the space indicated. For each injection
well, include its EPA Identification Number, name, ad-
dress, and current plugging and abandonment cost esti-
mate.]
1. This firm is the owner or operator of the following
injection wells for which financial assurance for plugging
and abandonment is demonstrated through the financial
test specified in subpart F of 40 CFR part 144. The cur-
rent plugging and abandonment cost estimate covered by
the test is shown for each injection well: .
2. This firm guarantees, through the corporate guaran-
tee specified in subpart F of 40 CFR part 144, the plug-
ging and abandonment of the following injection wells
owned or operated by subsidaries of this firm. The current
cost estimate for plugging and abandonment so guaran-
teed is shown for each injection well: .
3. In States where EPA is not administering the finan-
cial requirements of subpart F of 40 CFR part 144, this
firm, as owner or operator or guarantor, is demonstrating
financial assurance for the plugging and abandoment of
the following injection wells through the use of a test
equivalent or substantially equivalent to the financial test
specified in subpart F of 40 CFR part 144. The current
plugging and abandonment cost estimate covered by such
a test is shown for each injection well: .
4. This firm is the owner or operator of the following
injection wells for which financial assurance for plugging
and abandonment is not demonstrated either to EPA or a
State through the financial test or any other financial as-
surance mechanism specified in subpart F of 40 CFR part
144 or equivalent or substantially equivalent State mecha-
nisms. The current plugging and abandonment cost esti-
mate not covered by such financial assurance is shown for
each injection well: .
This firm [insert "is required" or "is not required"]
to file a Form 10K with the Securities and Exchange
Commission (SEC) for the latest fiscal year.
The fiscal year of this firm ends on [month, day]. The
figures for the following items marked with an asterisk
are derived from this firm's independently audited, year-
end financial statements for the latest completed fiscal
year, ended [date].
[Fill in Alternative I if the criteria of paragraph (f)(l)(i)
of § 144.63 of this chapter are used. Fill in Alternative II
if the criteria of paragraph (f)(l)(ii) of §144.63 of this
chapter are used.]
ALTERNATIVE I
1. (a) Current plugging and abandonment cost $
ALTERNATIVE I—Continued
(b) Sum of the company's financial respon-
sibilities under 40 CFR Parts 264 and
265, Subpart H, currently met using the
financial test or corporate guarantee
(c) Total of lines a and b
*2. Total liabilities [if any portion of the plugging
and abandonment cost is included in total li-
abilities, you may deduct the amount of that
portion from this line and add that amount to
lines 3 and 4]
*3. Tangible net worth
*4. Net worth
*5. Current assets
*6. Current liabilities
*7. Net working capital [line 5 minus line 6]
*8. The sum of net income plus depreciation,
depletion and amortization
*9. Total assets in U.S. (required only if less
than 90% of firm's assets are located in
U.S.)
Yes
10. Is line 3 at least $10 million?
11. Is line 3 at least 6 times line
12. Is line 7 at least 6 times line
*13. Are at least 90% of firm's as-
sets located in the U.S.? If not,
complete line 14
14. Is line 9 at least 6 times line
15. Is line 2 divided by line 4 less
than 2.0?
16. Is line 8 divided by line 2 great-
er than 0.1?
17. Is line 5 divided by line 6 great-
er than 1.5?
ALTERNATIVE II
1. (a) Current plugging and abandonment cost
(b) Sum of the company's financial respon-
sibilities under 40 CFR Parts 264 and
265, Subpart H, currently met using the
financial test or corporate guarantee
(c) Total of lines a and b
2. Current bond rating of most recent issuance
of this firm and name of rating service
3. Date of issuance of bond
4. Date of maturity of bond
*5. Tangible net worth [if any portion of the
plugging and abandonment cost estimate is
included in "total liabilities" on your firm's fi-
nancial statements, you may add the amount
of that portion to this line]
*6. Total assets in U.S. (required only if less
than 90% of firm's assets are located in
U.S.)
Yes
7. Is line 5 at least $10 million?
8. Is line 5 at least 6 times line
1(c)?
*9. Are at least 90% of the firm's
assets located in the U.S.? If
not, complete line 10
10. Is line 6 at least 6 times line
No
44
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§144.70
I hereby certify that the wording of this letter is iden-
tical to the wording specified in 40 CFR 144.70(f) as
such regulations were constituted on the date shown im-
mediately below.
[Signature]
[Name]
[Title]
[Date]
(g) A corporate guarantee as specified in
§ 144.63(e) must be worded as follows except that
instructions in brackets are to be replaced with the
relevant information and the bracketed material
deleted:
GUARANTEE FOR PLUGGING AND ABANDONMENT
Guarantee made this
day of
[name of guaranteeing entity], a business corporation or-
ganized under the laws of the State of , herein
referred to as guarantor, to the United States Environ-
mental Protection Agency (EPA), obligee, on behalf of
our subsidiary [owner or operator] of [business address].
Recitals
1. Guarantor meets or exceeds the financial test criteria
and agrees to comply with the reporting requirements for
guarantors as specified in 40 CFR 144.63(e).
2. [Owner or operator] owns or operates the following
Class I hazardous waste injection well covered by this
guarantee: [List for each facility: EPA Identification
Number, name, and address. Indicate for each whether
guarantee is for closure, post-closure care, or both.]
3. "Plugging and abandonment plan" as used below
refers to the plans maintained as required by 40 CFR part
144 for the plugging and abandonment of injection wells
as identified above.
4. For value received from [owner or operator], guaran-
tor guarantees to EPA that in the event that [owner or op-
erator] fails to perform ["plugging and abandonment"] of
the above facility(ies) in accordance with the plugging
and abandonment plan and other requirements when re-
quired to do so, the guarantor will do so or fund a trust
fund as specified in 40 CFR 144.63 in the name of
[owner or operator] in the amount of the adjusted plug-
ging and abandonment cost estimates prepared as speci-
fied in 40 CFR 144.62.
5. Guarantor agrees that, if at the end of any fiscal year
before termination of this guarantee, the guarantor fails to
meet the financial test criteria, guarantor will send within
90 days, by certified mail, notice to the EPA Regional
Administrator (s) for the Region(s) in which the
facility(ies) is (are) located and to [owner or operator]
that he intends to provide alternate financial assurance as
specified in 40 CFR 144.63 in the name of [owner or op-
erator]. Within 30 days after sending such notice, the
guarantor will establish such financial assurance if [owner
or operator] has not done so.
6. The guarantor agrees to notify the Regional Admin-
istrator, by certified mail, of a voluntary or involuntary
case under Title 11, U.S. Code, naming guarantor as debt-
or, within 10 days after its commencement.
7. Guarantor agrees that within 30 days after being no-
tified by an EPA Regional Administrator of a determina-
tion that guarantor no longer meets the financial test cri-
teria or that he is disallowed from continuing as a guaran-
tor of plugging and adandonment, he will establish alter-
nate financial assurance, as specified in 40 CFR 144.63,
in the name of [owner or operator] if [owner or operator]
has not done so.
8. Guarantor agrees to remain bound under this guaran-
tee notwithstanding any or all of the following: amend-
ment or modification of the plugging and abandonment
plan, the extension or reduction of the time of perform-
ance of plugging and abandonment or any other modifica-
tion or alteration of an obligation of [owner or operator]
pursuant to 40 CFR part 144.
9. Guarantor agrees to remain bound under this guaran-
tee for so long as [owner or operator] must comply with
the applicable financial assurance requirements of 40 CFR
part 144 for the above-listed facilities, except that guaran-
tor may cancel this guarantee by sending notice by cer-
tified mail, to the EPA Regional Administrator(s) for the
Region(s) in which the facility(ies) is (are) located and to
[owner or operator], such cancellation to become effective
no earlier than 120 days after actual receipt of such notice
by both EPA and [owner or operator] as evidenced by the
return receipts.
10. Guarantor agrees that if [owner or operator] fails to
provide alternate financial assurance and obtain written
approval of such assurance from the EPA Regional
Administrator (s) within 90 days after a notice of cancella-
tion by the guarantor is received by both the EPA Re-
gional Administrator(s) and [owner or operator], guarantor
will provide alternate financial assurance as specified in
40 CFR 144.63 in the name of [owner or operator].
11. Guarantor expressly waives notice of acceptance of
this guarantee by the EPA or by [owner or operator].
Guarantor also expressly waives notice of amendments or
modifications of the plugging and abandonment plan.
I hereby certify that the wording of this guarantee is
identical to the wording specified in 40 CFR 144.70(f).
Effective date: .
[Name of guarantor]
[Authorized signature for guarantor]
[Type name of person signing]
[Title of person signing]
Signature of witness or notary:
[48 FR 14189, Apr. 1, 1983, as amended at 59 FR 29959,
June 10, 1994]
45
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PART 145—STATE UIC PROGRAM
REQUIREMENTS
Subpart A—General Program
Requirements
Sec.
145.1 Purpose and scope.
145.2 Definitions.
Subpart B—Requirements for State
Programs
145.11 Requirements for permitting.
145.12 Requirements for compliance evaluation pro-
grams.
145.13 Requirements for enforcement authority.
145.14 Sharing of information.
Subpart C—State Program Submissions
145.21 General requirements for program approvals.
145.22 Elements of a program submission.
145.23 Program description.
145.24 Attorney General's statement.
145.25 Memorandum of Agreement with the Regional
Administrator.
Subpart D—Program Approval, Revision
and Withdrawal
145.31 Approval process.
145.32 Procedures for revision of State programs.
145.33 Criteria for withdrawal of State programs.
145.34 Procedures for withdrawal of State programs.
Subpart E—Indian Tribes
145.52 Requirements for Tribal eligibility.
145.56 Request by an Indian Tribe for a determination
of eligibility.
145.58 Procedure for processing an Indian Tribe's appli-
cation.
AUTHORITY: 42 U.S.C. 300f et seq.
SOURCE: 48 FR 14202, Apr. 1, 1983, unless otherwise
noted.
Subpart A—General Program
Requirements
§ 145.1 Purpose and scope.
(a) This part specifies the procedures EPA will
follow in approving, revising, and withdrawing
State programs under section 1422 (underground
injection control—UIC) of SDWA, and includes
the elements which must be part of submissions to
EPA for program approval and the substantive
provisions which must be present in State pro-
grams for them to be approved.
(b) State submissions for program approval
must be made in accordance with the procedures
set out in subpart C. This includes developing and
submitting to EPA a program description
(§ 145.23), an Attorney General's Statement
(§ 145.24), and a Memorandum of Agreement with
the Regional Administrator (§ 145.25).
(c) The substantive provisions which must be
included in State programs to obtain approval in-
clude requirements for permitting, compliance
evaluation, enforcement, public participation, and
sharing of information. The requirements are
found in subpart B. Many of the requirements for
State programs are made applicable to States by
cross-referencing other EPA regulations. In par-
ticular, many of the provisions of parts 144 and
124 are made applicable to States by the ref-
erences contained in § 145.11.
(d) Upon submission of a complete program,
EPA will conduct a public hearing, if interest is
shown, and determine whether to approve or dis-
approve the program taking into consideration the
requirements of this part, the Safe Drinking Water
Act and any comments received.
(e) Upon approval of a State program, the Ad-
ministrator shall suspend the issuance of Federal
permits for those activities subject to the approved
State program.
(f) Any State program approved by the Admin-
istrator shall at all times be conducted in accord-
ance with the requirements of this part.
(g) Nothing in this part precludes a State from:
(1) Adopting or enforcing requirements which
are more stringent or more extensive than those
required under this part;
(2) Operating a program with a greater scope of
coverage than that required under this part. Where
an approved State program has a greater scope of
coverage than required by Federal law the addi-
tional coverage is not part of the federally ap-
proved program.
(h) Section 1451 of the SDWA authorizes the
Administrator to delegate primary enforcement re-
sponsibility for the Underground Injection Control
Program to eligible Indian Tribes. An Indian Tribe
must establish its eligibility to be treated as a State
before it is eligible to apply for Underground In-
jection Control grants and primary enforcement re-
sponsibility. All requirements of parts 124, 144,
145, and 146 that apply to States with UIC pri-
mary enforcement responsibility also apply to In-
dian Tribes except where specifically noted.
[48 FR 14202, Apr. 1, 1983, as amended at 53 FR 37412,
Sept. 26, 1988; 59 FR 64345, Dec. 14, 1994]
§145.2 Definitions.
The definitions of part 144 apply to all subparts
of this part.
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§145.11
Subpart B—Requirements for State
Programs
§ 145.11 Requirements for permitting.
(a) All State programs under this part must have
legal authority to implement each of the following
provisions and must be administered in conform-
ance with each; except that States are not pre-
cluded from omitting or modifying any provisions
to impose more stringent requirements.
(1) Section 144.5(b)—(Confidential informa-
tion);
(2) Section 144.6—(Classification of injection
wells);
(3) Section 144.7—(Identification of under-
ground sources of drinking water and exempted
aquifers);
(4) Section 144.8—(Noncompliance reporting);
(5) Section 144.11—(Prohibition of unauthor-
ized injection);
(6) Section 144.12—(Prohibition of movement
of fluids into underground sources of drinking
water);
(7) Section 144.13—(Elimination of Class IV
wells);
(8) Section 144.14—(Requirements for wells
managing hazardous waste);
(9) Sections 144.21-144.26—(Authorization by
rule);
(10) Section 144.31—(Application for a permit);
(11) Section 144.32—(Signatories);
(12) Section 144.33—(Area Permits);
(13) Section 144.34—(Emergency permits);
(14) Section 144.35—(Effect of permit);
(15) Section 144.36—(Duration);
(16) Section 144.38—(Permit transfer);
(17) Section 144.39—(Permit modification);
(18) Section 144.40—(Permit termination);
(19) Section 144.51—(Applicable permit condi-
tions);
(20) Section 144.52—(Establishing permit con-
ditions);
(21) Section 144.53(a)—(Schedule of compli-
ance);
(22) Section 144.54—(Monitoring require-
ments);
(23) Section 144.55—(Corrective Action);
(24) Section 124.3(a)—(Application for a per-
mit);
(25) Section 124.5 (a), (c), (d), and (^—(Modi-
fication of permits);
(26) Section 124.6 (a), (c), (d), and (e)—(Draft
Permit);
(27) Section 124.8—(Fact sheets);
(28) Section 124.10 (a)(l)(ii), (a)(l)(iii),
(a)(l)(v), (b), (c), (d), and (e)—(Public notice);
(29) Section 124.11—(Public comments and re-
quests for hearings);
(30) Section 124.12(a)—(Public hearings); and
(31) Section 124.17 (a) and (c)—(Response to
comments).
(b)(l) States need not implement provisions
identical to the provisions listed in paragraphs (a)
(1) through (31) of this section. Implemented pro-
visions must, however, establish requirements at
least as stringent as the corresponding listed provi-
sions. While States may impose more stringent re-
quirements, they may not make one requirement
more lenient as a tradeoff for making another re-
quirement more stringent; for example, by requir-
ing that public hearings be held prior to issuing
any permit while reducing the amount of advance
notice of such a hearing.
(2) State programs may, if they have adequate
legal authority, implement any of the provisions of
parts 144 and 124. See, for example § 144.37(d)
(continuation of permits) and § 124.4 (consolida-
tion of permit processing).
§145.12 Requirements for compliance
evaluation programs.
(a) State programs shall have procedures for re-
ceipt, evaluation, retention and investigation for
possible enforcement of all notices and reports re-
quired of permittees and other regulated persons
(and for investigation for possible enforcement of
failure to submit these notices and reports).
(b) State programs shall have inspection and
surveillance procedures to determine, independent
of information supplied by regulated persons, com-
pliance or noncompliance with applicable program
requirements. The State shall maintain:
(1) A program which is capable of making com-
prehensive surveys of all facilities and activities
subject to the State Director's authority to identify
persons subject to regulation who have failed to
comply with permit application or other program
requirements. Any compilation, index, or inven-
tory of such facilities and activities shall be made
available to the Regional Administrator upon re-
quest;
(2) A program for periodic inspections of the
facilities and activities subject to regulation. These
inspections shall be conducted in a manner de-
signed to:
(i) Determine compliance or noncompliance
with issued permit conditions and other program
requirements;
(ii) Verify the accuracy of information submit-
ted by permittees and other regulated persons in
reporting forms and other forms supplying mon-
itoring data; and
(iii) Verify the adequacy of sampling, monitor-
ing, and other methods used by permittees and
other regulated persons to develop that informa-
tion;
-------
§145.13
(3) A program for investigating information ob-
tained regarding violations of applicable program
and permit requirements; and
(4) Procedures for receiving and ensuring proper
consideration of information submitted by the pub-
lic about violations. Public effort in reporting vio-
lations shall be encouraged and the State Director
shall make available information on reporting pro-
cedures.
(c) The State Director and State officers en-
gaged in compliance evaluation shall have author-
ity to enter any site or premises subject to regula-
tion or in which records relevant to program oper-
ation are kept in order to copy any records, in-
spect, monitor or otherwise investigate compliance
with permit conditions and other program require-
ments. States whose law requires a search warrant
before entry conform with this requirement.
(d) Investigatory inspections shall be conducted,
samples shall be taken and other information shall
be gathered in a manner [e.g., using proper "chain
of custody" procedures] that will produce evi-
dence admissible in an enforcement proceeding or
in court.
§145.13 Requirements for enforcement
authority.
(a) Any State agency administering a program
shall have available the following remedies for
violations of State program requirements:
(1) To restrain immediately and effectively any
person by order or by suit in State court from en-
gaging in any unauthorized activity which is en-
dangering or causing damage to public health or
environment;
NOTE: This paragraph requires that States have a mech-
anism (e.g., an administrative cease and desist order or
the ability to seek a temporary restraining order) to stop
any unauthorized activity endangering public health or the
environment.
(2) To sue in courts of competent jurisdiction to
enjoin any threatened or continuing violation of
any program requirement, including permit condi-
tions, without the necessity of a prior revocation
of the permit;
(3) To assess or sue to recover in court civil
penalties and to seek criminal remedies, including
fines, as follows:
(i) For all wells except Class II wells, civil pen-
alties shall be recoverable for any program viola-
tion in at least the amount of $2,500 per day. For
Class II wells, civil penalties shall be recoverable
for any program violation in at least the amount
of $1,000 per day.
(ii) Criminal fines shall be recoverable in at
least the amount of $5,000 per day against any
person who willfully violates any program require-
ment, or for Class II wells, pipeline (production)
severance shall be imposable against any person
who willfully violates any program requirement.
NOTE: In many States the State Director will be rep-
resented in State courts by the State Attorney General or
other appropriate legal officer. Although the State Direc-
tor need not appear in court actions he or she should have
power to request that any of the above actions be brought.
(b)(l) The maximum civil penalty or criminal
fine (as provided in paragraph (a)(3) of this sec-
tion) shall be assessable for each instance of viola-
tion and, if the violation is continuous, shall be as-
sessable up to the maximum amount for each day
of violation.
(2) The burden of proof and degree of knowl-
edge or intent required under State law for estab-
lishing violations under paragraph (a)(3) of this
section, shall be no greater than the burden of
proof or degree of knowledge or intent EPA must
provide when it brings an action under the Safe
Drinking Water Act.
NOTE: For example, this requirement is not met if State
law includes mental state as an element of proof for civil
violations.
(c) A civil penalty assessed, sought, or agreed
upon by the State Director under paragraph (a)(3)
of this section shall be appropriate to the violation.
NOTE: To the extent that State judgments or settlements
provide penalties in amounts which EPA believes to be
substantially inadequate in comparison to the amounts
which EPA would require under similar facts, EPA, when
authorized by the applicable statute, may commence sepa-
rate actions for penalties.
In addition to the requirements of this paragraph, the
State may have other enforcement remedies. The follow-
ing enforcement options, while not mandatory, are highly
recommended:
Procedures for assessment by the State of the costs of
investigations, inspections, or monitoring surveys which
lead to the establishment of violations;
Procedures which enable the State to assess or to sue
any persons responsible for unauthorized activities for any
expenses incurred by the State in removing, correcting, or
terminating any adverse effects upon human health and
the environment resulting from the unauthorized activity,
or both; and
Procedures for the administrative assessment of pen-
alties by the Director.
(d) Any State administering a program shall
provide for public participation in the State en-
forcement process by providing either:
(1) Authority which allows intervention as of
right in any civil or administrative action to obtain
remedies specified in paragraph (a) (1), (2) or (3)
of this section by any citizen having an interest
which is or may be adversely affected; or
(2) Assurance that the State agency or enforce-
ment authority will:
(i) Investigate and provide written responses to
all citizen complaints submitted pursuant to the
procedures specified in § 145.12(b)(4);
-------
§145.14
(ii) Not oppose intervention by any citizen when
permissive intervention may be authorized by stat-
ute, rule, or regulation; and
(iii) Publish notice of and provide at least 30
days for public comment on any proposed settle-
ment of a State enforcement action.
(e) To the extent that an Indian Tribe does not
assert or is precluded from asserting criminal en-
forcement authority the Administrator will assume
primary enforcement responsibility for criminal
violations. The Memorandum of Agreement in
§ 145.25 shall reflect a system where the Tribal
agency will refer such violations to the Adminis-
trator in an appropriate and timely manner.
(Clean Water Act (33 U.S.C. 1251 et seq.), Safe Drinking
Water Act (42 U.S.C. 300f et seq.), Clean Air Act (42
U.S.C. 7401 et seq.\ Resource Conservation and Recov-
ery Act (42 U.S.C. 6901 et seq.))
[48 FR 14202, Apr. 1, 1983, as amended at 48 FR 39621,
Sept. 1, 1983; 53 FR 37412, Sept. 26, 1988]
§ 145.14 Sharing of information.
(a) Any information obtained or used in the ad-
ministration of a State program shall be available
to EPA upon request without restriction. If the in-
formation has been submitted to the State under a
claim of confidentiality, the State must submit that
claim to EPA when providing information under
this section. Any information obtained from a
State and subject to a claim of confidentiality will
be treated in accordance with the regulations in 40
CFR part 2. If EPA obtains from a State informa-
tion that is not claimed to be confidential, EPA
may make that information available to the public
without further notice.
(b) EPA shall furnish to States with approved
programs the information in its files not submitted
under a claim of confidentiality which the State
needs to implement its approved program. EPA
shall furnish to States with approved programs in-
formation submitted to EPA under a claim of con-
fidentiality, which the State needs to implement its
approved program, subject to the conditions in 40
CFR part 2.
Subpart C—State Program
Submissions
§145.21 General requirements for pro-
gram approvals.
(a) States shall submit to the Administrator a
proposed State UIC program complying with
§ 145.22 of this part within 270 days of the date
of promulgation of the UIC regulations on June
24, 1980. The administrator may, for good cause,
extend the date for submission of a proposed State
UIC program for up to an additional 270 days.
(b) States shall submit to the Administrator 6
months after the date of promulgation of the UIC
regulations a report describing the State's progress
in developing a UIC program. If the Administrator
extends the time for submission of a UIC program
an additional 270 days, pursuant to § 145.21(a),
the State shall submit a second report six months
after the first report is due. The Administrator may
prescribe the manner and form of the report.
(c) The requirements of §145.21 (a) and (b)
shall not apply to Indian Tribes.
(d) EPA will establish a UIC program in any
State which does not comply with paragraph (a) of
this section. EPA will continue to operate a UIC
program in such a State until the State receives
approval of a UIC program in accordance with the
requirements of this part.
NOTE: States which are authorized to administer the
NPDES permit program under section 402 of CWA are
encouraged to rely on existing statutory authority, to the
extent possible, in developing a State UIC program. Sec-
tion 402(b)(l)(D) of CWA requires that NPDES States
have the authority "to issue permits which control the
disposal of pollutants into wells." In many instances,
therefore, NPDES States will have existing statutory au-
thority to regulate well disposal which satisfies the re-
quirements of the UIC program. Note, however, that
CWA excludes certain types of well injections from the
definition of "pollutant." If the State's statutory authority
contains a similar exclusion it may need to be modified
to qualify for UIC program approval.
(e) If a State can demonstrate to EPA's satisfac-
tion that there are no underground injections with-
in the State for one or more classes of injection
wells (other than Class IV wells) subject to
SDWA and that such injections cannot legally
occur in the State until the State has developed an
approved program for those classes of injections,
the State need not submit a program to regulate
those injections and a partial program may be ap-
proved. The demonstration of legal prohibition
shall be made by either explicitly banning new in-
jections of the class not covered by the State pro-
gram or providing a certification from the State
Attorney General that such new injections cannot
legally occur until the State has developed an ap-
proved program for that class. The State shall sub-
mit a program to regulate both those classes of in-
jections for which a demonstration is not made
and class IV wells.
(f) When a State UIC program is fully approved
by EPA to regulate all classes of injections, the
State assumes primary enforcement authority
under section 1422(b)(3) of SDWA. EPA retains
primary enforcement responsibility whenever the
State program is disapproved in whole or in part.
States which have partially approved programs
have authority to enforce any violation of the ap-
proved portion of their program. EPA retains au-
thority to enforce violations of State underground
injection control programs, except that, when a
State has a fully approved program, EPA will not
-------
§145.23
take enforcement actions without providing prior
notice to the State and otherwise complying with
section 1423 of SOW A.
(g) A State can assume primary enforcement re-
sponsibility for the UIC program, notwithstanding
§ 145.21(3), when the State program is unable to
regulate activities on Indian lands within the State.
EPA will administer the program on Indian lands
if the State does not seek this authority.
[48 FR 14202, Apr. 1, 1983, as amended at 53 FR 37412,
Sept. 26, 1988]
§145.22 Elements of a program sub-
mission.
(a) Any State that seeks to administer a program
under this part shall submit to the Administrator at
least three copies of a program submission. The
submission shall contain the following:
(1) A letter from the Governor of the State re-
questing program approval;
(2) A complete program description, as required
by § 145.23, describing how the State intends to
carry out its responsibilities under this part;
(3) An Attorney General's statement as required
by § 145.24;
(4) A Memorandum of Agreement with the Re-
gional Administrator as required by § 145.25;
(5) Copies of all applicable State statutes and
regulations, including those governing State ad-
ministrative procedures;
(6) The showing required by §145.31(b) of the
State's public participation activities prior to pro-
gram submission.
(b) Within 30 days of receipt by EPA of a State
program submission, EPA will notify the State
whether its submission is complete. If EPA finds
that a State's submission is complete, the statutory
review period (i.e., the period of time allotted for
formal EPA review of a proposed State program
under the Safe Drinking Water Act) shall be
deemed to have begun on the date of receipt of
the State's submission. If EPA finds that a State's
submission is incomplete, the statutory review pe-
riod shall not begin until all the necessary infor-
mation is received by EPA.
(c) If the State's submission is materially
changed during the statutory review period, the
statutory review period shall begin again upon re-
ceipt of the revised submission.
(d) The State and EPA may extend the statutory
review period by agreement.
§145.23 Program description.
Any State that seeks to administer a program
under this part shall submit a description of the
program it proposes to administer in lieu of the
Federal program under State law or under an inter-
state compact. The program description shall in-
clude:
(a) A description in narrative form of the scope,
structure, coverage and processes of the State pro-
gram.
(b) A description (including organization charts)
of the organization and structure of the State agen-
cy or agencies which will have responsibility for
administering the program, including the informa-
tion listed below. If more than one agency is re-
sponsible for administration of a program, each
agency must have statewide jurisdiction over a
class of activities. The responsibilities of each
agency must be delineated, their procedures for
coordination set forth, and an agency may be des-
ignated as a "lead agency" to facilitate commu-
nications between EPA and the State agencies
having program responsibility. When the State
proposes to administer a program of greater scope
of coverage than is required by Federal law, the
information provided under this paragraph shall in-
dicate the resources dedicated to administering the
Federally required portion of the program.
(1) A description of the State agency staff who
will carry out the State program, including the
number, occupations, and general duties of the
employees. The State need not submit complete
job descriptions for every employee carrying out
the State program.
(2) An itemization of the estimated costs of es-
tablishing and administering the program for the
first two years after approval, including cost of the
personnel listed in paragraph (b)(l) of this section,
cost of administrative support, and cost of tech-
nical support.
(3) An itemization of the sources and amounts
of funding, including an estimate of Federal grant
money, available to the State Director for the first
two years after approval to meet the costs listed
in paragraph (b)(2) of this section, identifying any
restrictions or limitations upon this funding.
(c) A description of applicable State procedures,
including permitting procedures and any State ad-
ministrative or judicial review procedures.
(d) Copies of the permit form(s), application
form(s), reporting form(s), and manifest format the
State intends to employ in its program. Forms
used by States need not be identical to the forms
used by EPA but should require the same basic in-
formation. The State need not provide copies of
uniform national forms it intends to use but should
note its intention to use such forms.
NOTE: States are encouraged to use uniform national
forms established by the Administrator. If uniform na-
tional forms are used, they may be modified to include
the State Agency's name, address, logo, and other similar
information, as appropriate, in place of EPA's.
(e) A complete description of the State's com-
pliance tracking and enforcement program.
-------
§145.24
(f) A State UIC program description shall also
include:
(1) A schedule for issuing permits within five
years after program approval to all injection wells
within the State which are required to have per-
mits under this part and part 144;
(2) The priorities (according to criteria set forth
in 40 CFR 146.09) for issuing permits, including
the number of permits in each class of injection
well which will be issued each year during the
first five years of program operation;
(3) A description of how the Director will im-
plement the mechanical integrity testing require-
ments of 40 CFR 146.08, including the frequency
of testing that will be required and the number of
tests that will be reviewed by the Director each
year;
(4) A description of the procedure whereby the
Director will notify owners and operators of injec-
tion wells of the requirement that they apply for
and obtain a permit. The notification required by
this paragraph shall require applications to be filed
as soon as possible, but not later than four years
after program approval for all injection wells re-
quiring a permit;
(5) A description of any rule under which the
Director proposes to authorize injections, including
the text of the rule;
(6) For any existing enhanced recovery and hy-
drocarbon storage wells which the Director pro-
poses to authorize by rule, a description of the
procedure for reviewing the wells for compliance
with applicable monitoring, reporting, construc-
tion, and financial responsibility requirements of
§§ 144.51 and 144.52, and 40 CFR part 146;
(7) A description of and schedule for the State's
program to establish and maintain a current inven-
tory of injection wells which must be permitted
under State law;
(8) Where the Director had designated under-
ground sources of drinking water in accordance
with § 144.7(a), a description and identification of
all such designated sources in the State;
(9) A description of aquifers, or parts thereof,
which the Director has identified under § 144.7(b)
as exempted aquifers, and a summary of support-
ing data;
(10) A description of and schedule for the
State's program to ban Class IV wells prohibited
under §144.13; and
(11) A description of and schedule for the
State's program to establish an inventory of Class
V wells and to assess the need for a program to
regulate Class V wells.
§ 145.24 Attorney General's statement.
(a) Any State that seeks to administer a program
under this part shall submit a statement from the
State Attorney General (or the attorney for those
State or interstate agencies which have independ-
ent legal counsel) that the laws of the State, or an
interstate compact, provide adequate authority to
carry out the program described under § 145.23
and to meet the requirements of this part. This
statement shall include citations to the specific
statutes, administrative regulations, and, where ap-
propriate, judicial decisions which demonstrate
adequate authority. State statutes and regulations
cited by the State Attorney General or independent
legal counsel shall be in the form of lawfully
adopted State statutes and regulations at the time
the statement is signed and shall be fully effective
by the time the program is approved. To qualify
as "independent legal counsel" the attorney sign-
ing the statement required by this section must
have full authority to independently represent the
State agency in court on all matters pertaining to
the State program.
NOTE: EPA will supply States with an Attorney Gen-
eral's statement format on request.
(b) When a State seeks authority over activities
on Indian lands, the statement shall contain an ap-
propriate analysis of the State's authority.
§145.25 Memorandum of Agreement
with the Regional Administrator.
(a) Any State that seeks to administer a program
under this part shall submit a Memorandum of
Agreement. The Memorandum of Agreement shall
be executed by the State Director and the Regional
Administrator and shall become effective when ap-
proved by the Administrator. In addition to meet-
ing the requirements of paragraph (b) of this sec-
tion, the Memorandum of Agreement may include
other terms, conditions, or agreements consistent
with this Part and relevant to the administration
and enforcement of the State's regulatory program.
The Administrator shall not approve any Memo-
randum of Agreement which contains provisions
which restrict EPA's statutory oversight respon-
sibility.
(b) The Memorandum of Agreement shall in-
clude the following:
(1) Provisions for the prompt transfer from EPA
to the State of pending permit applications and
any other information relevant to program oper-
ation not already in the possession of the State Di-
rector (e.g., support files for permit issuance, com-
pliance reports, etc.). When existing permits are
transferred from EPA to State for administration,
the Memorandum of Agreement shall contain pro-
visions specifying a procedure for transferring the
administration of these permits. If a State lacks the
authority to directly administer permits issued by
the Federal government, a procedure may be es-
tablished to transfer responsibility for these per-
mits.
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§145.31
NOTE: For example, EPA and the State and the permit-
tee could agree that the State would issue a permit(s)
identical to the outstanding Federal permit which would
simultaneously be terminated.
(2) Provisions specifying classes and categories
of permit applications, draft permits, and proposed
permits that the State will send to the Regional
Administrator for review, comment and, where ap-
plicable, objection.
(3) Provisions specifying the frequency and con-
tent of reports, documents and other information
which the State is required to submit to EPA. The
State shall allow EPA to routinely review State
records, reports, and files relevant to the adminis-
tration and enforcement of the approved program.
State reports may be combined with grant reports
where appropriate.
(4) Provisions on the State's compliance mon-
itoring and enforcement program, including:
(i) Provisions for coordination of compliance
monitoring activities by the State and by EPA.
These may specify the basis on which the Re-
gional Administrator will select facilities or activi-
ties within the State for EPA inspection. The Re-
gional Administrator will normally notify the State
at least 7 days before any such inspection; and
(ii) Procedures to assure coordination of en-
forcement activities.
(5) When appropriate, provisions for joint proc-
essing of permits by the State and EPA, for facili-
ties or activities which require permits from both
EPA and the State under different programs. See
§ 124.4.
(6) Provisions for modification of the Memoran-
dum of Agreement in accordance with this part.
(c) The Memorandum of Agreement, the annual
program and grant and the State/EPA Agreement
should be consistent. If the State/EPA Agreement
indicates that a change is needed in the Memoran-
dum of Agreement, the Memorandum of Agree-
ment may be amended through the procedures set
forth in this part. The State/EPA Agreement may
not override the Memorandum of Agreement.
NOTE: Detailed program priorities and specific arrange-
ments for EPA support of the State program will change
and are therefore more appropriately negotiated in the
context of annual agreements rather than in the MOA.
However, it may still be appropriate to specify in the
MOA the basis for such detailed agreements, e.g., a pro-
vision in the MOA specifying that EPA will select facili-
ties in the State for inspection annually as part of the
State/EPA agreement.
Sub part D—Program Approval,
Revision and Withdrawal
§ 145.31 Approval process.
(a) Prior to submitting an application to the Ad-
ministrator for approval of a State UIC program,
the State shall issue public notice of its intent to
adopt a UIC program and to seek program ap-
proval from EPA. This public notice shall:
(1) Be circulated in a manner calculated to at-
tract the attention of interested persons. Circulation
of the public notice shall include publication in
enough of the largest newspapers in the State to
attract Statewide attention and mailing to persons
on appropriate State mailing lists and to any other
persons whom the agency has reason to believe
are interested;
(2) Indicate when and where the State's pro-
posed program submission may be reviewed by
the public;
(3) Indicate the cost of obtaining a copy of the
submission;
(4) Provide for a comment period of not less
than 30 days during which interested persons may
comment on the proposed UIC program;
(5) Schedule a public hearing on the State pro-
gram for no less than 30 days after notice of the
hearing is published;
(6) Briefly outline the fundamental aspects of
the State UIC program; and
(7) Identify a person that an interested member
of the public may contact for further information.
(b) After complying with the requirements of
paragraph (a) of this section any State may submit
a proposed UIC program under section 1422 of
SDWA and § 145.22 of this part to EPA for ap-
proval. Such a submission shall include a showing
of compliance with paragraph (a) of this section;
copies of all written comments received by the
State; a transcript, recording or summary of any
public hearing which was held by the State; and
a responsiveness summary which identifies the
public participation activities conducted, describes
the matters presented to the public, summarizes
significant comments received, and responds to
these comments. A copy of the responsiveness
summary shall be sent to those who testified at the
hearing, and others upon request.
(c) After determining that a State's submission
for UIC program approval is complete the Admin-
istrator shall issue public notice of the submission
in the FEDERAL REGISTER and in accordance with
paragraph (a)(l) of this section. Such notice shall:
(1) Indicate that a public hearing will be held
by EPA no earlier than 30 days after notice of the
hearing. The notice may require persons wishing
to present testimony to file a request with the Re-
gional Administrator, who may cancel the public
hearing if sufficient public interest in a hearing is
not expressed;
(2) Afford the public 30 days after the notice to
comment on the State's submission; and
(3) Note the availability of the State submission
for inspection and copying by the public.
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§145.32
(d) The Administrator shall approve State pro-
grams which conform to the applicable require-
ments of this part.
(e) Within 90 days of the receipt of a complete
submission (as provided in § 145.22) or material
amendment thereto, the Administrator shall by rule
either fully approve, disapprove, or approve in part
the State's UIC program taking into account any
comments submitted. The Administrator shall give
notice of this rule in the FEDERAL REGISTER and
in accordance with paragraph (a)(l) of this section.
If the Administrator determines not to approve the
State program or to approve it only in part, the no-
tice shall include a concise statement of the rea-
sons for this determination. A responsiveness sum-
mary shall be prepared by the Regional Office
which identifies the public participation activities
conducted, describes the matters presented to the
public, summarizes significant comments received,
and explains the Agency's response to these com-
ments. The responsiveness summary shall be sent
to those who testified at the public hearing, and to
others upon request.
§145.32 Procedures for revision of
State programs.
(a) Either EPA or the approved State may initi-
ate program revision. Program revision may be
necessary when the controlling Federal or State
statutory or regulatory authority is modified or
supplemented. The state shall keep EPA fully in-
formed of any proposed modifications to its basic
statutory or regulatory authority, its forms, proce-
dures, or priorities.
(b) Revision of a State program shall be accom-
plished as follows:
(1) The State shall submit a modified program
description, Attorney General's statement, Memo-
randum of Agreement, or such other documents as
EPA determines to be necessary under the cir-
cumstances.
(2) Whenever EPA determines that the proposed
program revision is substantial, EPA shall issue
public notice and provide an opportunity to com-
ment for a period of at least 30 days. The public
notice shall be mailed to interested persons and
shall be published in the FEDERAL REGISTER and
in enough of the largest newspapers in the State
to provide Statewide coverage. The public notice
shall summarize the proposed revisions and pro-
vide for the opportunity to request a public hear-
ing. Such a hearing will be held is there if signifi-
cant public interest based on requests received.
(3) The Administrator shall approve or dis-
approve program revisions based on the require-
ments of this part and of the Safe Drinking Water
Act.
(4) A program revision shall become effective
upon the approval of the Administrator. Notice of
approval of any substantial revision shall be pub-
lished in the FEDERAL REGISTER. Notice of ap-
proval of non-substantial program revisions may
be given by a letter from the Administrator to the
State Governor or his designee.
(c) States with approved programs shall notify
EPA whenever they propose to transfer all or part
of any program from the approved State agency to
any other State agency, and shall identify any new
division of responsibilities among the agencies in-
volved. The new agency is not authorized to ad-
minister the program until approval by the Admin-
istrator under paragraph (b) of this section. Orga-
nizational charts required under § 145.23(b) shall
be revised and resubmitted.
(d) Whenever the Administrator has reason to
believe that circumstances have changed with re-
spect to a State program, he may request, and the
State shall provide, a supplemental Attorney Gen-
eral's statement, program description, or such
other documents or information as are necessary.
(e) The State shall submit the information re-
quired under paragraph (b)(l) of this section with-
in 270 days of any amendment to this part or 40
CFR part 144, 146, or 124 which revises or adds
any requirement respecting an approved UIC pro-
gram.
§145.33 Criteria for withdrawal of
State programs.
(a) The Administrator may withdraw program
approval when a State program no longer complies
with the requirements of this part, and the State
fails to take corrective action. Such circumstances
include the following:
(1) When the State's legal authority no longer
meets their requirements of this part, including:
(i) Failure of the State to promulgate or enact
new authorities when necessary; or
(ii) Action by a State legislature or court strik-
ing down or limiting State authorities.
(2) When the operation of the State program
fails to comply with the requirements of this part,
including:
(i) Failure to exercise control over activities re-
quired to be regulated under this part, including
failure to issue permits;
(ii) Repeated issuance of permits which do not
conform to the requirements of this part; or
(iii) Failure to comply with the public participa-
tion requirements of this part.
(3) When the State's enforcement program fails
to comply with the requirements of this part, in-
cluding:
(i) Failure to act on violations of permits or
other program requirements;
(ii) Failure to seek adequate enforcement pen-
alties or to collect administrative fines when im-
posed; or
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§145.52
(iii) Failure to inspect and monitor activities
subject to regulation.
(4) When the State program fails to comply
with the terms of the Memorandum of Agreement
required under § 145.24.
§145.34 Procedures for withdrawal of
State programs.
(a) A State with a program approved under this
part may voluntarily transfer program responsibil-
ities required by Federal law to EPA by taking the
following actions, or in such other manner as may
be agreed upon with the Administrator.
(1) The State shall give the Administrator 180
days notice of the proposed transfer and shall sub-
mit a plan for the orderly transfer of all relevant
program information not in the possession of EPA
(such as permits, permit files, compliance files, re-
ports, permit applications) which are necessary for
EPA to administer the program.
(2) Within 60 days of receiving the notice and
transfer plan, the Administrator shall evaluate the
State's transfer plan and shall identify any addi-
tional information needed by the Federal govern-
ment for program administration and/or identify
any other deficiencies in the plan.
(3) At least 30 days before the transfer is to
occur the Administrator shall publish notice of the
transfer in the FEDERAL REGISTER and in enough
of the largest newspapers in the State to provide
Statewide coverage, and shall mail notice to all
permit holders, permit applicants, other regulated
persons and other interested persons on appro-
priate EPA and State mailing lists.
(b) Approval of a State UIC program may be
withdrawn and a Federal program established in
its place when the Administrator determines, after
holding a public hearing, that the State program is
not in compliance with the requirements of SDWA
and this part.
(1) Notice to State of public hearing. If the Ad-
ministrator has cause to believe that a State is not
administering or enforcing its authorized program
in compliance with the requirements of SDWA
and this part, he or she shall inform the State by
registered mail of the specific areas of alleged
noncompliance. If the State demonstrates to the
Administrator within 30 days of such notification
that the State program is in compliance, the Ad-
ministrator shall take no further action toward
withdrawal and shall so notify the State by reg-
istered mail.
(2) Public hearing. If the State has not dem-
onstrated its compliance to the satisfaction of the
Administrator within 30 days after notification, the
Administrator shall inform the State Director and
schedule a public hearing to discuss withdrawal of
the State program. Notice of such public hearing
shall be published in the FEDERAL REGISTER and
in enough of the largest newspapers in the State
to attract statewide attention, and mailed to per-
sons on appropriate State and EPA mailing lists.
This hearing shall be convened not less than 60
days nor more than 75 days following the publica-
tion of the notice of the hearing. Notice of the
hearing shall identify the Administrator's concerns.
All interested persons shall be given opportunity
to make written or oral presentation on the State's
program at the public hearing.
(3) Notice to State of findings. When the Ad-
ministrator finds after the public hearing that the
State is not in compliance, he or she shall notify
the State by registered mail of the specific defi-
ciencies in the State program and of necessary re-
medial actions. Within 90 days of receipt of the
above letter, the State shall either carry out the re-
quired remedial action or the Administrator shall
withdraw program approval. If the State carries
out the remedial action or, as a result of the hear-
ing is found to be in compliance, the Adminis-
trator shall so notify the State by registered mail
and conclude the withdrawal proceedings.
Subpart E—Indian Tribes
SOURCE: 53 FR 37412, Sept. 26, 1988, unless other-
wise noted.
§145.52 Requirements for Tribal eligi-
bility.
The Administrator is authorized to treat an In-
dian Tribe as eligible to apply for primary en-
forcement responsibility for the Underground In-
jection Control Program if it meets the following
criteria:
(a) The Indian Tribe is recognized by the Sec-
retary of the Interior.
(b) The Indian Tribe has a Tribal governing
body which is currently "carrying out substantial
governmental duties and powers" over a defined
area, (i.e., is currently performing governmental
functions to promote the health, safety, and wel-
fare of the affected population within a defined
geographic area).
(c) The Indian Tribe demonstrates that the func-
tions to be performed in regulating the under-
ground injection wells that the applicant intends to
regulate are within the area of the Indian Tribal
government's jurisdiction.
(d) The Indian Tribe is reasonably expected to
be capable, in the Administrator's judgment, of
administering (in a manner consistent with the
terms and purposes of the Act and all applicable
regulations) an effective Underground Injection
Control Program.
[53 FR 37412, Sept. 26, 1988, as amended at 59 FR
64345, Dec. 14, 1994]
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§145.56
§145.56 Request by an Indian Tribe
for a determination of eligibility.
An Indian Tribe may apply to the Administrator
for a determination that it meets the criteria of
section 1451 of the Act. The application shall be
concise and describe how the Indian Tribe will
meet each of the requirements of §145.52. The
application shall consist of the following:
(a) A statement that the Tribe is recognized by
the Secretary of the Interior.
(b) A descriptive statement demonstrating that
the Tribal governing body is currently carrying out
substantial governmental duties and powers over a
defined area. The statement should:
(1) Describe the form of the Tribal government;
(2) Describe the types of governmental func-
tions currently performed by the Tribal governing
body such as, but not limited to, the exercise of
police powers affecting (or relating to) the health,
safety, and welfare of the affected population; tax-
ation; and the exercise of the power of eminent
domain; and
(3) Identify the sources of the Tribal govern-
ment's authority to carry out the governmental
functions currently being performed.
(c) A map or legal description of the area over
which the Indian Tribe asserts jurisdiction; a state-
ment by the Tribal Attorney General (or equiva-
lent official) which describes the basis for the
Tribe's jurisdictional assertion (including the na-
ture or subject matter of the asserted jurisdiction);
a copy of those documents such as Tribal constitu-
tions, by-laws, charters, executive orders, codes,
ordinances, and/or resolutions which the Tribe be-
lieves are relevant to its assertions regarding juris-
diction; and a description of the locations of the
underground injection wells the Tribe proposes to
regulate.
(d) A narrative statement describing the capabil-
ity of the Indian Tribe to administer an effective
Underground Injection Control program which
should include:
(1) A description of the Indian Tribe's previous
management experience which may include, the
administration of programs and services authorized
under the Indian Self-Determination and Education
Assistance Act (25 U.S.C. 450 et seq.), the Indian
Mineral Development Act (25 U.S.C. 2101 et
seq.), or the Indian Sanitation Facilities Construc-
tion Activity Act (42 U.S.C. 2004a).
(2) A list of existing environmental or public
health programs administered by the Tribal gov-
erning body and a copy of related Tribal laws,
regulations and policies.
(3) A description of the Indian Tribe's account-
ing and procurement systems.
(4) A description of the entity (or entities)
which exercise the executive, legislative, and judi-
cial functions of the Tribal government.
(5) A description of the existing, or proposed,
agency of the Indian Tribe which will assume pri-
mary enforcement responsibility, including a de-
scription of the relationship between owners/opera-
tors of the underground injection wells and the
agency.
(6) A description of the technical and adminis-
trative capabilities of the staff to administer and
manage an effective Underground Injection Con-
trol Program or a plan which proposes how the
Tribe will acquire additional administrative and/or
technical expertise. The plan must address how the
Tribe will obtain the funds to acquire the addi-
tional administrative and technical expertise.
(e) The Adminstrator may, in his discretion, re-
quest further documentation necessary to support a
Tribe's eligibility.
(f) If the Administrator has previously deter-
mined that a Tribe has met the prerequisites that
make it eligible to assume a role similar to that of
a State as provided by statute under the Safe
Drinking Water Act, the Clean Water Act, or the
Clean Air Act, then that Tribe need provide only
that information unique to the Underground Injec-
tion Control program (§ 145.76(c) and (d)(6)).
[53 FR 37412, Sept. 26, 1988, as amended at 59 FR
64345, Dec. 14, 1994]
§145.58 Procedure for processing an
Indian Tribe's application.
(a) The Administrator shall process a completed
application of an Indian Tribe in a timely manner.
He shall promptly notify the Indian Tribe of re-
ceipt of the application.
(b) A tribe that meets the requirements of
§145.52 is eligible to apply for development
grants and primary enforcement responsibility for
an Underground Injection Control program and the
associated funding under section 1443(b) of the
Act and primary enforcement responsibility for the
Underground Injection Control Program under sec-
tions 1422 and/or 1425 of the Act.
[53 FR 37412, Sept. 26, 1988, as amended at 59 FR
64345, Dec. 14, 1994]
10
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PART 146—UNDERGROUND INJEC-
TION CONTROL PROGRAM: CRI-
TERIA AND STANDARDS
Subpart A—General Provisions
Sec.
146.1 Applicability and scope.
146.2 Law authorizing these regulations.
146.3 Definitions.
146.4 Criteria for exempted aquifers.
146.5 Classification of injection wells.
146.6 Area of review.
146.7 Corrective action.
146.8 Mechanical integrity.
146.9 Criteria for establishing permitting priorities.
146.10 Plugging and abandoning Class I-III wells.
Subpart B—Criteria and Standards
Applicable to Class I Wells
146.11 Criteria and standards applicable to Class I
nonhazardous wells.
146.12 Construction requirements.
146.13 Operating, monitoring and reporting require-
ments.
146.14 Information to be considered by the Director.
Subpart C—Criteria and Standards
Applicable to Class II Wells
146.21 Applicability.
146.22 Construction requirements.
146.23 Operating, monitoring, and reporting require-
ments.
146.24 Information to be considered by the Director.
Subpart D—Criteria and Standards
Applicable to Class III Wells
146.31 Applicability.
146.32 Construction requirements.
146.33 Operating, monitoring and reporting require-
ments.
146.34 Information to be considered by the Director.
Subpart E—Criteria and Standards Appli-
cable to Class IV Injection Wells [Re-
served]
Subpart F—Criteria and Standards
Applicable to Class V Injection Wells
146.51 Applicability.
Subpart G—Criteria and Standards Appli-
cable to Class I Hazardous Waste In-
jection Wells
146.61 Applicability.
146.62 Minimum criteria for siting.
146.63 Area of review.
146.64 Corrective action for wells in the area of review.
146.65 Construction requirements.
146.66 Logging, sampling, and testing prior to new well
operation.
146.67 Operating requirements.
146.68 Testing and monitoring requirements.
146.69 Reporting requirements.
146.70 Information to be evaluated by the Director.
146.71 Closure.
146.72 Post-closure care.
146.73 Financial responsibility for post-closure care.
AUTHORITY: Safe Drinking Water Act, 42 U.S.C. 300f
et seq.; Resource Conservation and Recovery Act, 42
U.S.C. 6901 etseq.
SOURCE: 45 FR 42500, June 24, 1980, unless otherwise
noted.
EDITORIAL NOTE: 1. For a rule-related notice affecting
part 146, see 52 FR 26342, July 14, 1987.
2. For a document removing the OMB control number
wherever it appeared in part 146, see 58 FR 34370, June
25, 1993.
Subpart A—General Provisions
§ 146.1 Applicability and scope.
(a) This part sets forth technical criteria and
standards for the Underground Injection Control
Program. This part should be read in conjunction
with 40 CFR parts 124, 144, and 145, which also
apply to UIC programs. 40 CFR part 144 defines
the regulatory framework of EPA administered
permit programs. 40 CFR part 145 describes the
elements of an approvable State program and pro-
cedures for EPA approval of State participation in
the permit programs. 40 CFR part 124 describes
the procedures the Agency will use for issuing
permits under the covered programs. Certain of
these procedures will also apply to State-adminis-
tered programs as specified in 40 CFR part 145.
(b) Upon the approval, partial approval or pro-
mulgation of a State UIC program by the Admin-
istrator, any underground injection which is not
authorized by the Director by rule or by permit is
unlawful.
(Clean Water Act, Safe Drinking Water Act, Clean Air
Act, Resource Conservation and Recovery Act: 42 U.S.C.
6905, 6912, 6925, 6927, 6974)
[45 FR 42500, June 24, 1980, as amended at 48 FR
14293, Apr. 1, 1983]
§146.2 Law authorizing these regula-
tions.
The Safe Drinking Water Act, 42 U.S.C. 300f
et seq. authorizes these regulations and all other
UIC program regulations referenced in 40 CFR
part 144. Certain regulations relating to the injec-
tion of hazardous waste are also authorized by the
Resource Conservation and Recovery Act, 42
U.S.C. 6901 et seq.
[58 FR 63898, Dec. 3, 1993]
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§146.3
§146.3 Definitions.
The following definitions apply to the under-
ground injection control program.
Abandoned well means a well whose use has
been permanently discontinued or which is in a
state of disrepair such that it cannot be used for
its intended purpose or for observation purposes.
Administrator means the Administrator of the
United States Environmental Protection Agency,
or an authorized representative.
Application means the EPA standard national
forms for applying for a permit, including any ad-
ditions, revisions or modifications to the forms; or
forms approved by EPA for use in approved
States, including any approved modifications or re-
visions. For RCRA, application also includes the
information required by the Director under
§ 122.25 (contents of Part B of the RCRA applica-
tion).
Aquifer means a geological formation, group of
formations, or part of a formation that is capable
of yielding a significant amount of water to a well
or spring.
Area of review means the area surrounding an
injection well described according to the criteria
set forth in § 146.06 or in the case of an area per-
mit, the project area plus a circumscribing area the
width of which is either 1A of a mile or a number
calculated according to the criteria set forth in
§ 146.06.
Casing means a pipe or tubing of appropriate
material, of varying diameter and weight, lowered
into a borehole during or after drilling in order to
support the sides of the hole and thus prevent the
walls from caving, to prevent loss of drilling mud
into porous ground, or to prevent water, gas, or
other fluid from entering or leaving the hole.
Catastrophic collapse means the sudden and
utter failure of overlying "strata" caused by re-
moval of underlying materials.
Cementing means the operation whereby a ce-
ment slurry is pumped into a drilled hole and/or
forced behind the casing.
Confining bed means a body of impermeable or
distinctly less permeable material stratigraphically
adjacent to one or more aquifers.
Confining zone means a geological formation,
group of formations, or part of a formation that is
capable of limiting fluid movement above an in-
jection zone.
Contaminant means any physical, chemical, bio-
logical, or radiological substance or matter in
water.
Conventional mine means an open pit or under-
ground excavation for the production of minerals.
Director means the Regional Administrator, the
State director or the Tribal director as the context
requires, or an authorized representative. When
there is no approved State or Tribal program, and
there is an EPA administered program, "Director"
means the Regional Administrator. When there is
an approved State or Tribal program, "Director"
normally means the State or Tribal director. In
some circumstances, however, EPA retains the au-
thority to take certain actions even when there is
an approved State or Tribal program. (For exam-
ple, when EPA has issued an NPDES permit prior
to the approval of a State program, EPA may re-
tain jurisdiction over that permit after program ap-
proval; see § 123.69). In such cases, the term Di-
rector means the Regional Administrator and not
the State or Tribal director.
Disposal well means a well used for the dis-
posal of waste into a subsurface stratum.
Effective date of a UIC program means the date
that a State UIC program is approved or estab-
lished by the Administrator.
Environmental Protection Agency ("EPA")
means the United States Environmental Protection
Agency.
EPA means the United States "Environmental
Protection Agency."
Exempted acquifer means an aquifer or its por-
tion that meets the criteria in the definition of
"underground source of drinking water" but
which has been exempted according to the proce-
dures of § 144.8(b).
Existing injection well means an "injection
well" other than a "new injection well."
Experimental technology means a technology
which has not been proven feasible under the con-
ditions in which it is being tested.
Facility or activity means any "HWM facility,"
UIC "injection well," NPDES "point source," or
State 404 dredge and fill activity, or any other fa-
cility or activity (including land or appurtenances
thereto) that is subject to regulation under the
RCRA, UIC, NPDES, or 404 programs.
Fault means a surface or zone of rock fracture
along which there has been displacement.
Flow rate means the volume per time unit given
to the flow of gases or other fluid substance which
emerges from an orifice, pump, turbine or passes
along a conduit or channel.
Fluid means material or substance which flows
or moves whether in a semisolid, liquid, sludge,
gas, or any other form or state.
Formation means a body of rock characterized
by a degree of lithologic homogeneity which is
prevailingly, but not necessarily, tabular and is
mappable on the earth's surface or traceable in the
subsurface.
Formation fluid means "fluid" present in a
"formation" under natural conditions as opposed
to introduced fluids, such as drilling mud.
Generator means any person, by site location,
whose act or process produces hazardous waste
identified or listed in 40 CFR part 261.
-------
§146.3
Ground water means water below the land sur-
face in a zone of saturation.
Hazardous waste means a hazardous waste as
defined in 40 CFR 261.3.
Hazardous Waste Management facility ("HWM
facility") means all contiguous land, and struc-
tures, other appurtenances, and improvements on
the land used for treating, storing, or disposing of
hazardous waste. A facility may consist of several
treatment, storage, or disposal operational units
(for example, one or more landfills, surface im-
poundments, or combination of them).
HWM facility means "Hazardous Waste Man-
agement facility.''
Indian Tribe means any Indian Tribe having a
Federally recognized governing body carrying out
substantial governmental duties and powers over a
defined area.
Injection well means a "well" into which
"fluids" are being injected.
Injection zone means a geological "formation",
group of formations, or part of a formation receiv-
ing fluids through a well.
Lithology means the description of rocks on the
basis of their physical and chemical characteristics.
Owner or operator means the owner or operator
of any facility or activity subject to regulation
under the RCRA, UIC, NPDES, or 404 programs.
Packer means a device lowered into a well to
produce a fluid-tight seal.
Permit means an authorization, license, or
equivalent control document issued by EPA or an
"approved State" to implement the requirements
of this part and parts 124, 144, and 145. Permit
does not include RCRA interim status (§ 122.23),
UIC authorization by rule (§§144.21 to 144.26
and 144.15), or any permit which has not yet been
the subject of final agency action, such as a "draft
permit'' or a ' 'proposed permit.''
Plugging means the act or process of stopping
the flow of water, oil or gas into or out of a for-
mation through a borehole or well penetrating that
formation.
Plugging record means a systematic listing of
permanent or temporary abandonment of water,
oil, gas, test, exploration and waste injection wells,
and may contain a well log, description of
amounts and types of plugging material used, the
method employed for plugging, a description of
formations which are sealed and a graphic log of
the well showing formation location, formation
thickness, and location of plugging structures.
Pressure means the total load or force per unit
area acting on a surface.
Project means a group of wells in a single oper-
ation.
Radioactive waste means any waste which con-
tains radioactive material in concentrations which
exceed those listed in 10 CFR part 20, appendix
B, table II column 2.
RCRA means the Solid Waste Disposal Act as
amended by the Resource Conservation and Re-
covery Act of 1976 (Pub. L. 94-580, as amended
by Pub. L. 95-609, 42 U.S.C. 6901 et seq.).
SDWA means the Safe Drinking Water Act
(Pub. L. 95-523, as amended by Pub. L. 95-190,
42 U.S.C. 300(f) et seq.).
Site means the land or water area where any fa-
cility or activity is physically located or con-
ducted, including adjacent land used in connection
with the facility or activity.
Sole or principal source aquifer means an aqui-
fer which has been designated by the Adminis-
trator pursuant to section 1424 (a) or (e) of the
SDWA.
State Director means the chief administrative
officer of any State, interstate, or Tribal agency
operating an "approved program," or the dele-
gated representative of the State Director. If the
responsibility is divided among two or more State,
interstate, or Tribal agencies, "State Director"
means the chief administrative officer of the State,
interstate, or Tribal agency authorized to perform
the particular procedure or function to which ref-
erence is made.
Stratum (plural strata) means a single sedi-
mentary bed or layer, regardless of thickness, that
consists of generally the same kind of rock mate-
rial.
Subsidence means the lowering of the natural
land surface in response to: Earth movements;
lowering of fluid pressure; removal of underlying
supporting material by mining or solution of sol-
ids, either artificially or from natural causes; com-
paction due to wetting (Hydrocompaction); oxida-
tion of organic matter in soils; or added load on
the land surface.
Surface casing means the first string of well
casing to be installed in the well.
Total dissolved solids ("TDS") means the total
dissolved (filterable) solids as determined by use
of the method specified in 40 CFR part 136.
UIC means the Underground Injection Control
program under Part C of the Safe Drinking Water
Act, including an "approved program."
Underground injection means a "well injec-
tion."
Underground source of drinking water (USDW)
means an aquifer or its portion:
(1) (i) Which supplies any public water system;
or
(ii) Which contains a sufficient quantity of
ground water to supply a public water system; and
(A) Currently supplies drinking water for human
consumption; or
(B) Contains fewer than 10,000 mg/1 total dis-
solved solids; and
-------
§146.4
(2) Which is not an exempted aquifer.
USDW means "underground source of drinking
water.''
Well means a bored, drilled or driven shaft, or
a dug hole, whose depth is greater than the largest
surface dimension.
Well injection means the subsurface emplace-
ment of fluids through a bored, drilled or driven
well; or through a dug well, where the depth of
the dug well is greater than the largest surface di-
mension.
Well plug means a watertight and gaslight seal
installed in a borehole or well to prevent move-
ment of fluids.
Well stimulation means several processes used
to clean the well bore, enlarge channels, and in-
crease pore space in the interval to be injected
thus making it possible for wastewater to move
more readily into the formation, and includes (1)
surging, (2) jetting, (3) blasting, (4) acidizing, (5)
hydraulic fracturing.
Well monitoring means the measurement, by on-
site instruments or laboratory methods, of the
quality of water in a well.
(Clean Water Act, Safe Drinking Water Act, Clean Air
Act, Resource Conservation and Recovery Act: 42 U.S.C.
6905, 6912, 6925, 6927, 6974)
[45 FR 42500, June 24, 1980, as amended at 46 FR
43161, Aug. 27, 1981; 47 FR 4998, Feb. 3, 1982; 48 FR
14293, Apr. 1, 1983; 53 FR 37414, Sept. 26, 1988]
§146.4 Criteria for exempted aquifers.
An aquifer or a portion thereof which meets the
criteria for an "underground source of drinking
water" in §146.3 may be determined under 40
CFR 144.8 to be an "exempted aquifer" if it
meets the following criteria:
(a) It does not currently serve as a source of
drinking water; and
(b) It cannot now and will not in the future
serve as a source of drinking water because:
(1) It is mineral, hydrocarbon or geothermal en-
ergy producing, or can be demonstrated by a per-
mit applicant as part of a permit application for a
Class II or III operation to contain minerals or hy-
drocarbons that considering their quantity and lo-
cation are expected to be commercially producible.
(2) It is situated at a depth or location which
makes recovery of water for drinking water pur-
poses economically or technologically impractical;
(3) It is so contaminated that it would be eco-
nomically ot technologically impractical to render
that water fit for human consumption; or
(4) It is located over a Class III well mining
area subject to subsidence or catastrophic collapse;
or
(c) The total dissolved solids content of the
ground water is more than 3,000 and less than
10,000 mg/1 and it is not reasonably expected to
supply a public water system.
(Clean Water Act, Safe Drinking Water Act, Clean Air
Act, Resource Conservation and Recovery Act: 42 U.S.C.
6905, 6912, 6925, 6927, 6974)
[45 FR 42500, June 24, 1980, as amended at 47 FR 4998,
Feb. 3, 1982; 48 FR 14293, Apr. 1, 1983]
§ 146.5 Classification of injection wells.
Injection wells are classified as follows:
(a) Class I. (1) Wells used by generators of haz-
ardous waste or owners or operators of hazardous
waste management facilities to inject hazardous
waste beneath the lowermost formation containing,
within one quarter (Vi) mile of the well bore, an
underground source of drinking water.
(2) Other industrial and municipal disposal
wells which inject fluids beneath the lowermost
formation containing, within one quarter mile of
the well bore, an underground source of drinking
water.
(b) Class II. Wells which inject fluids:
(1) Which are brought to the surface in connec-
tion with conventional oil or natural gas produc-
tion and may be commingled with waste waters
from gas plants which are an integral part of pro-
duction operations, unless those waters are classi-
fied as a hazardous waste at the time of injection.
(2) For enhanced recovery of oil or natural gas;
and
(3) For storage of hydrocarbons which are liq-
uid at standard temperature and pressure.
(c) Class III. Wells which inject for extraction
of minerals including:
(1) Mining of sulfur by the Frasch process;
(2) In situ production of uranium or other met-
als. This category includes only in-situ production
from ore bodies which have not been convention-
ally mined. Solution mining of conventional mines
such as slopes leaching is included in Class V.
(3) Solution mining of sails or polash.
(d) Class IV. (1) Wells used by generators of
hazardous wasle or of radioaclive wasle, by own-
ers or operators of hazardous wasle managemenl
facilities, or by owners or operators of radioaclive
wasle disposal siles lo dispose of hazardous wasle
or radioaclive wasle inlo a formation which wilhin
one quarter (Vi) mile of Ihe well conlains an un-
derground source of drinking water.
(2) Wells used by generators of hazardous wasle
or of radioaclive wasle, by owners or operators of
hazardous wasle managemenl facilities, or by own-
ers or operators of radioaclive wasle disposal siles
lo dispose of hazardous wasle or radioaclive wasle
above a formation which wilhin one quarter (Vi)
mile of Ihe well conlains an underground source
of drinking water.
(3) Wells used by generators of hazardous wasle
or owners or operators of hazardous wasle man-
-------
§146.6
agement facilities to dispose of hazardous waste,
which cannot be classified under § 146.05(a)(l) or
§ 146.05(d) (1) and (2) (e.g., wells used to dispose
of hazardous wastes into or above a formation
which contains an aquifer which has been exempt-
ed pursuant to § 146.04).
(e) Class V. Injection wells not included in
Class I, II, III, or IV. Class V wells include:
(1) Air conditioning return flow wells used to
return to the supply aquifer the water used for
heating or cooling in a heat pump;
(2) Cesspools including multiple dwelling, com-
munity or regional cesspools, or other devices that
receive wastes which have an open bottom and
sometimes have perforated sides. The UIC require-
ments do not apply to single family residential
cesspools nor to non-residential cesspools which
receive solely sanitary wastes and have the capac-
ity to serve fewer than 20 persons a day.
(3) Cooling water return flow wells used to in-
ject water previously used for cooling;
(4) Drainage wells used to drain surface fluid,
primarily storm runoff, into a subsurface forma-
tion;
(5) Dry wells used for the injection of wastes
into a subsurface formation;
(6) Recharge wells used to replenish the water
in an aquifer;
(7) Salt water intrusion barrier wells used to in-
ject water into a fresh water aquifer to prevent the
intrusion of salt water into the fresh water;
(8) Sand backfill and other backfill wells used
to inject a mixture of water and sand, mill tailings
or other solids into mined out portions of sub-
surface mines whether what is injected is a radio-
active waste or not.
(9) Septic system wells used to inject the waste
or effluent from a multiple dwelling, business es-
tablishment, community or regional business es-
tablishment septic tank. The UIC requirements do
not apply to single family residential septic system
wells, nor to non-residential septic system wells
which are used solely for the disposal of sanitary
waste and have the capacity to serve fewer than
20 persons a day.
(10) Subsidence control wells (not used for the
purpose of oil or natural gas production) used to
inject fluids into a non-oil or gas producing zone
to reduce or eliminate subsidence associated with
the overdraft of fresh water;
(11) Radioactive waste disposal wells other than
Class IV;
(12) Injection wells associated with the recovery
of geothermal energy for heating, aquaculture and
production of electric power.
(13) Wells used for solution mining of conven-
tional mines such as slopes leaching;
(14) Wells used to inject spent brine into the
same formation from which it was withdrawn after
extraction of halogens or their salts;
(15) Injection wells used in experimental tech-
nologies.
(16) Injection wells used for in situ recovery of
lignite, coal, tar sands, and oil shale.
[45 FR 42500, June 24, 1980, as amended at 46 FR
43161, Aug. 27, 1981; 47 FR 4999, Feb. 3, 1982]
§ 146.6 Area of review.
The area of review for each injection well or
each field, project or area of the State shall be de-
termined according to either paragraph (a) or (b)
of this section. The Director may solicit input
from the owners or operators of injection wells
within the State as to which method is most ap-
propriate for each geographic area or field.
(a) Zone of endangering influence. (1) The zone
of endangering influence shall be:
(i) In the case of application(s) for well
permit(s) under § 122.38 that area the radius of
which is the lateral distance in which the pressures
in the injection zone may cause the migration of
the injection and/or formation fluid into an under-
ground source of drinking water; or
(ii) In the case of an application for an area per-
mit under § 122.39, the project area plus a cir-
cumscribing area the width of which is the lateral
distance from the perimeter of the project area, in
which the pressures in the injection zone may
cause the migration of the injection and/or forma-
tion fluid into an underground source of drinking
water.
(2) Computation of the zone of endangering in-
fluence may be based upon the parameters listed
below and should be calculated for an injection
time period equal to the expected life of the injec-
tion well or pattern. The following modified Theis
equation illustrates one form which the mathemati-
cal model may take.
2.25KHt 1/2
where:
S10X
47TKH(hw
r=Radius of endangering influence from injection well
(length)
k=Hydraulic conductivity of the injection zone (length/
time)
H=Thickness of the injection zone (length)
t=Time of injection (time)
S=Storage coefficient (dimensionless)
Q=Injection rate (volume/time)
-------
§146.7
hb0=Observed original hydrostatic head of injection zone
(length) measured from the base of the lowermost
underground source of drinking water
hw=Hydrostatic head of underground source of drinking
water (length) measured from the base of the lowest
underground source of drinking water
SpGb=Specific gravity of fluid in the injection zone
(dimensionless)
7T=3.142 (dimensionless)
The above equation is based on the following as-
sumptions:
(i) The injection zone is homogenous and iso-
tropic;
(ii) The injection zone has infinite area extent;
(iii) The injection well penetrates the entire
thickness of the injection zone;
(iv) The well diameter is infinitesimal compared
to "r" when injection time is longer than a few
minutes; and
(v) The emplacement of fluid into the injection
zone creates instantaneous increase in pressure.
(b) Fixed radius. (1) In the case of
application(s) for well permit(s) under § 122.38 a
fixed radius around the well of not less than one-
fourth (l/4) mile may be used.
(2) In the case of an application for an area per-
mit under § 122.39 a fixed width of not less than
one-fourth (VV) mile for the circumscribing area
may be used.
In determining the fixed radius, the following fac-
tors shall be taken into consideration: Chemistry
of injected and formation fluids; hydrogeology;
population and ground-water use and dependence;
and historical practices in the area.
(c) If the area of review is determined by a
mathematical model pursuant to paragraph (a) of
this section, the permissible radius is the result of
such calculation even if it is less than one-fourth
(Vt) mile.
[45 FR 42500, June 24, 1980, as amended at 46 FR
43161, Aug. 27, 1981; 47 FR 4999, Feb. 3, 1982]
§146.7 Corrective action.
In determining the adequacy of corrective action
proposed by the applicant under 40 CFR 144.55
and in determining the additional steps needed to
prevent fluid movement into underground sources
of drinking water, the following criteria and fac-
tors shall be considered by the Director:
(a) Nature and volume of injected fluid;
(b) Nature of native fluids or by-products of in-
jection;
(c) Potentially affected population;
(d) Geology;
(e) Hydrology;
(f) History of the injection operation;
(g) Completion and plugging records;
(h) Abandonment procedures in effect at the
time the well was abandoned; and
(i) Hydraulic connections with underground
sources of drinking water.
(Clean Water Act, Safe Drinking Water Act, Clean Air
Act, Resource Conservation and Recovery Act: 42 U.S.C.
6905, 6912, 6925, 6927, 6974)
[45 FR 42500, June 24, 1980, as amended at 46 FR
43162, Aug. 27, 1981; 48 FR 14293, Apr. 1, 1983]
§146.8 Mechanical integrity.
(a) An injection well has mechanical integrity
if:
(1) There is no significant leak in the casing,
tubing or packer; and
(2) There is no significant fluid movement into
an underground source of drinking water through
vertical channels adjacent to the injection well
bore.
(b) One of the following methods must be used
to evaluate the absence of significant leaks under
paragraph (a)(l) of this section:
(1) Following an initial pressure test, monitoring
of the tubing-casing annulus pressure with suffi-
cient frequency to be representative, as determined
by the Director, while maintaining an annulus
pressure different from atmospheric pressure meas-
ured at the surface;
(2) Pressure test with liquid or gas; or
(3) Records of monitoring showing the absence
of significant changes in the relationship between
injection pressure and injection flow rate for the
following Class II enhanced recovery wells:
(i) Existing wells completed without a packer
provided that a pressure test has been performed
and the data is available and provided further that
one pressure test shall be performed at a time
when the well is shut down and if the running of
such a test will not cause further loss of signifi-
cant amounts of oil or gas; or
(ii) Existing wells constructed without a long
string casing, but with surface casing which termi-
nates at the base of fresh water provided that local
geological and hydrological features allow such
construction and provided further that the annular
space shall be visually inspected. For these wells,
the Director shall prescribe a monitoring program
which will verify the absence of significant fluid
movement from the injection zone into an USDW.
(c) One of the following methods must be used
to determine the absence of significant fluid move-
ment under paragraph (a)(2) of this section:
(1) The results of a temperature or noise log; or
(2) For Class II only, cementing records dem-
onstrating the presence of adequate cement to pre-
vent such migration; or
(3) For Class III wells where the nature of the
casing precludes the use of the logging techniques
prescribed at paragraph (c)(l) of this section, ce-
menting records demonstrating the presence of
adequate cement to prevent such migration;
-------
§146.10
(4) For Class III wells where the Director elects
to rely on cementing records to demonstrate the
absence of significant fluid movement, the mon-
itoring program prescribed by § 146.33(b) shall be
designed to verify the absence of significant fluid
movement.
(d) The Director may allow the use of a test to
demonstrate mechanical integrity other than those
listed in paragraphs (b) and (c)(2) of this section
with the written approval of the Administrator. To
obtain approval, the Director shall submit a written
request to the Administrator, which shall set forth
the proposed test and all technical data supporting
its use. The Administrator shall approve the re-
quest if it will reliably demonstrate the mechanical
integrity of wells for which its use is proposed.
Any alternate method approved by the Adminis-
trator shall be published in the FEDERAL REGISTER
and may be used in all States unless its use is re-
stricted at the time of approval by the Adminis-
trator.
(e) In conducting and evaluating the tests enu-
merated in this section or others to be allowed by
the Director, the owner or operator and the Direc-
tor shall apply methods and standards generally
accepted in the industry. When the owner or oper-
ator reports the results of mechanical integrity
tests to the Director, he shall include a description
of the test(s) and the method(s) used. In making
his/her evaluation, the Director shall review mon-
itoring and other test data submitted since the pre-
vious evaluation.
(f) The Director may require additional or alter-
native tests if the results presented by the owner
or operator under § 146.8(e) are not satisfactory to
the Director to demonstrate that there is no move-
ment of fluid into or between USDWs resulting
from the injection activity.
[45 FR 42500, June 24, 1980, as amended at 46 FR
43162, Aug. 27, 1981; 47 FR 4999, Feb. 3, 1982; 58 FR
63898, Dec. 3, 1993]
§146.9 Criteria for establishing per-
mitting priorities.
In determining priorities for setting times for
owners or operators to submit applications for au-
thorization to inject under the procedures of
§144.31 (a), (c), (g) or § 144.22(f), the Director
shall base these priorities upon consideration of
the following factors:
(a) Injection wells known or suspected to be
contaminating underground sources of drinking
water;
(b) Injection wells known to be injecting fluids
containing hazardous contaminants;
(c) Likelihood of contamination of underground
sources of drinking water;
(d) Potentially affected population;
(e) Injection wells violating existing State re-
quirements;
(f) Coordination with the issuance of permits re-
quired by other State or Federal permit programs;
(g) Age and depth of the injection well; and
(h) Expiration dates of existing State permits, if
any.
(Clean Water Act, Safe Drinking Water Act, Clean Air
Act, Resource Conservation and Recovery Act: 42 U.S.C.
6905, 6912, 6925, 6927, 6974)
[45 FR 42500, June 24, 1980, as amended at 48 FR
14293, Apr. 1, 1983]
§146.10 Plugging and abandoning
Class I-III wells.
(a) Prior to abandoning Class I to III wells the
well shall be plugged with cement in a manner
which will not allow the movement of fluids either
into or between underground sources of drinking
water. The Director may allow Class III wells to
use other plugging materials if he is satisfied that
such materials will prevent movement of fluids
into or between underground sources of drinking
water.
(b) Placement of the cement plugs shall be ac-
complished by one of the following:
(1) The Balance method;
(2) The Dump Bailer method;
(3) The Two-Plug method; or
(4) An alternative method approved by the Di-
rector, which will reliably provide a comparable
level of protection to underground sources of
drinking water.
(c) The well to be abandoned shall be in a state
of static equilibrium with the mud weight equal-
ized top to bottom, either by circulating the mud
in the well at least once or by a comparable meth-
od prescribed by the Director, prior to the place-
ment of the cement plug(s).
(d) The plugging and abandonment plan re-
quired in 40 CFR 144.52(a)(6) and 144.51(n)
shall, in the case of a Class III project which
underlies or is in an aquifer which has been ex-
empted under 40 CFR 146.04, also demonstrate
adequate protection of USDWs. The Director shall
prescribe aquifer cleanup and monitoring where he
deems it necessary and feasible to insure adequate
protection of USDWs.
(Clean Water Act, Safe Drinking Water Act, Clean Air
Act, Resource Conservation and Recovery Act: 42 U.S.C.
6905, 6912, 6925, 6927, 6974)
[45 FR 42500, June 24, 1980, as amended at 47 FR 5000,
Feb. 3, 1982; 48 FR 14293, Apr. 1, 1983]
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§146.11
Sub pa it B—Criteria and Standards
Applicable to Class I Wells
§146.11 Criteria and standards appli-
cable to Class I nonhazardous wells.
This subpart establishes criteria and standards
for underground injection control programs to reg-
ulate Class I nonhazardous wells.
[53 FR 28148, July 26, 1988]
§146.12 Construction requirements.
(a) All Class I wells shall be sited in such a
fashion that they inject into a formation which is
beneath the lowermost formation containing, with-
in one quarter mile of the well bore, an under-
ground source of drinking water.
(b) All Class I wells shall be cased and ce-
mented to prevent the movement of fluids into or
between underground sources of drinking water.
The casing and cement used in the construction of
each newly drilled well shall be designed for the
life expectancy of the well. In determining and
specifying casing and cementing requirements, the
following factors shall be considered:
(1) Depth to the injection zone;
(2) Injection pressure, external pressure, internal
pressure, and axial loading;
(3) Hole size;
(4) Size and grade of all casing strings (wall
thickness, diameter, nominal weight, length, joint
specification, and construction material);
(5) Corrosiveness of injected fluid, formation
fluids, and temperatures;
(6) Lithology of injection and confining inter-
vals; and
(7) Type or grade of cement.
(c) All Class I injection wells, except those mu-
nicipal wells injecting non-corrosive wastes, shall
inject fluids through tubing with a packer set im-
mediately above the injection zone, or tubing with
an approved fluid seal as an alternative. The tub-
ing, packer, and fluid seal shall be designed for
the expected service.
(1) The use of other alternatives to a packer
may be allowed with the written approval of the
Director. To obtain approval, the operator shall
submit a written request to the Director, which
shall set forth the proposed alternative and all
technical data supporting its use. The Director
shall approve the request if the alternative method
will reliably provide a comparable level of protec-
tion to underground sources of drinking water. The
Director may approve an alternative method solely
for an individual well or for general use.
(2) In determining and specifying requirements
for tubing, packer, or alternatives the following
factors shall be considered:
(i) Depth of setting;
(ii) Characteristics of injection fluid (chemical
content, corrosiveness, and density);
(iii) Injection pressure;
(iv) Annular pressure;
(v) Rate, temperature and volume of injected
fluid; and
(vi) Size of casing.
(d) Appropriate logs and other tests shall be
conducted during the drilling and construction of
new Class I wells. A descriptive report interpreting
the results of such logs and tests shall be prepared
by a knowledgeable log analyst and submitted to
the Director. At a minimum, such logs and tests
shall include:
(1) Deviation checks on all holes constructed by
first drilling a pilot hole, and then enlarging the
pilot hole by reaming or another method. Such
checks shall be at sufficiently frequent intervals to
assure that vertical avenues for fluid migration in
the form of diverging holes are not created during
drilling.
(2) Such other logs and tests as may be needed
after taking into account the availability of similar
data in the area of the drilling site, the construc-
tion plan, and the need for additional information,
that may arise from time to time as the construc-
tion of the well progresses. In determining which
logs and tests shall be required, the following logs
shall be considered for use in the following situa-
tions:
(i) For surface casing intended to protect under-
ground sources of drinking water:
(A) Resistivity, spontaneous potential, and cali-
per logs before the casing is installed; and
(B) A cement bond, temperature, or density log
after the casing is set and cemented.
(ii) For intermediate and long strings of casing
intended to facilitate injection:
(A) Resistivity, spontaneous potential, porosity,
and gamma ray logs before the casing is installed;
(B) Fracture finder logs; and
(C) A cement bond, temperature, or density log
after the casing is set and cemented.
(e) At a minimum, the following information
concerning the injection formation shall be deter-
mined or calculated for new Class I wells:
(1) Fluid pressure;
(2) Temperature;
(3) Fracture pressure;
(4) Other physical and chemical characteristics
of the injection matrix; and
(5) Physical and chemical characteristics of the
formation fluids.
[45 FR 42500, June 24, 1980, as amended at 46 FR
43162, Aug. 27, 1981]
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§146.14
§146.13 Operating, monitoring and re-
porting requirements.
(a) Operating requirements. Operating require-
ments shall at a minimum, specify that:
(1) Except during stimulation injection pressure
at the wellhead shall not exceed a maximum
which shall be calculated so as to assure that the
pressure in the injection zone during injection does
not initiate new fractures or propagate existing
fractures in the injection zone. In no case shall in-
jection pressure initiate fractures in the confining
zone or cause the movement of injection or forma-
tion fluids into an underground source of drinking
water.
(2) Injection between the outermost casing pro-
tecting underground sources of drinking water and
the well bore is prohibited.
(3) Unless an alternative to a packer has been
approved under §146.12(c), the annulus between
the tubing and the long string of casings shall be
filled with a fluid approved by the Director and a
pressure, also approved by the Director, shall be
maintained on the annulus.
(b) Monitoring requirements. Monitoring re-
quirements shall, at a minimum, include:
(1) The analysis of the injected fluids with suf-
ficient frequency to yield representative data of
their characteristics;
(2) Installation and use of continuous recording
devices to monitor injection pressure, flow rate
and volume, and the pressure on the annulus be-
tween the tubing and the long string of casing;
(3) A demonstration of mechanical integrity
pursuant to §146.8 at least once every five years
during the life of the well; and
(4) The type, number and location of wells
within the area of review to be used to monitor
any migration of fluids into and pressure in the
underground sources of drinking water, the param-
eters to be measured and the frequency of mon-
itoring.
(c) Reporting requirements. Reporting require-
ments shall, at a minimum, include:
(1) Quarterly reports to the Director on:
(i) The physical, chemical and other relevant
characteristics of injection fluids;
(ii) Monthly average, maximum and minimum
values for injection pressure, flow rate and vol-
ume, and annular pressure; and
(iii) The results of monitoring prescribed under
paragraph (b)(4) of this section.
(2) Reporting the results, with the first quarterly
report after the completion, of:
(i) Periodic tests of mechanical integrity;
(ii) Any other test of the injection well con-
ducted by the permittee if required by the Direc-
tor; and
(iii) Any well work over.
(d) Ambient monitoring. (1) Based on a site-spe-
cific assessment of the potential for fluid move-
ment from the well or injection zone and on the
potential value of monitoring wells to detect such
movement, the Director shall require the owner or
operator to develop a monitoring program. At a
minimum, the Director shall require monitoring of
the pressure buildup in the injection zone annually,
including at a minimum, a shut down of the well
for a time sufficient to conduct a valid observation
of the pressure fall-off curve.
(2) When prescribing a monitoring system the
Director may also require:
(i) Continuous monitoring for pressure changes
in the first aquifer overlying the confining zone.
When such a well is installed, the owner or opera-
tor shall, on a quarterly basis, sample the aquifer
and analyze for constituents specified by the Di-
rector;
(ii) The use of indirect, geophysical techniques
to determine the position of the waste front, the
water quality in a formation designated by the Di-
rector, or to provide other site specific data;
(iii) Periodic monitoring of the ground water
quality in the first aquifer overlying the injection
zone;
(iv) Periodic monitoring of the ground water
quality in the lowermost USDW; and
(v) Any additional monitoring necessary to de-
termine whether fluids are moving into or between
USDWs.
[45 FR 42500, June 24, 1980, as amended at 46 FR
43162, Aug. 27, 1981; 47 FR 32129, July 26, 1982; 53
FR 28148, July 26, 1988]
§146.14 Information to be considered
by the Director.
This section sets forth the information which
must be considered by the Director in authorizing
Class I wells. For an existing or converted new
Class I well the Director may rely on the existing
permit file for those items of information listed
below which are current and accurate in the file.
For a newly drilled Class I well, the Director shall
require the submission of all the information listed
below. For both existing and new Class I wells
certain maps, cross-sections, tabulations of wells
within the area of review and other data may be
included in the application by reference provided
they are current, readily available to the Director
(for example, in the permitting agency's files) and
sufficiently identified to be retrieved. In cases
where EPA issues the permit all the information in
this section must be submitted to the Adminis-
trator.
(a) Prior to the issuance of a permit for an ex-
isting Class I well to operate or the construction
-------
§146.21
or conversion of a new Class I well the Director
shall consider the following:
(1) Information required in 40 CFR 144.31 and
144.3 l(g);
(2) A map showing the injection well(s) for
which a permit is sought and the applicable area
of review. Within the area of review, the map
must show the number, or name, and location of
all producing wells, dry holes, surface bodies of
water, springs, mines (surface and subsurface),
quarries, water wells and other pertinent surface
features including residences and roads. The map
should also show faults, if known or suspected.
Only information of public record is required to be
included on this map;
(3) A tabulation of data on all wells within the
area of review which penetrate into the proposed
injection zone. Such data shall include a descrip-
tion of each well's type, construction, date drilled,
location, depth, record of plugging and/or comple-
tion, and any additional information the Director
may require;
(4) Maps and cross sections indicating the gen-
eral vertical and lateral limits of all underground
sources of drinking water within the area of re-
view, their position relative to the injection forma-
tion and the direction of water movement, where
known, in each underground source of drinking
water which may be affected by the proposed in-
jection;
(5) Maps and cross sections detailing the geo-
logic structure of the local area;
(6) Generalized maps and cross sections illus-
trating the regional geologic setting;
(7) Proposed operating data:
(i) Average and maximum daily rate and vol-
ume of the fluid to be injected;
(ii) Average and maximum injection pressure;
and
(iii) Source and an analysis of the chemical,
physical, radiological and biological characteristics
of injection fluids;
(8) Proposed formation testing program to ob-
tain an analysis of the chemical, physical and radi-
ological characteristics of and other information on
the receiving formation;
(9) Proposed stimulation program;
(10) Proposed injection procedure;
(11) Schematic or other appropriate drawings of
the surface and subsurface construction details of
the well.
(12) Contingency plans to cope with all shut-ins
or well failures so as to prevent migration of
fluids into any underground source of drinking
water;
(13) Plans (including maps) for meeting the
monitoring requirements in § 146.13(b);
(14) For wells within the area of review which
penetrate the injection zone but are not properly
completed or plugged, the corrective action pro-
posed to be taken under 40 CFR 144.55;
(15) Construction procedures including a ce-
menting and casing program, logging procedures,
deviation checks, and a drilling, testing, and coring
program; and
(16) A certificate that the applicant has assured,
through a performance bond or other appropriate
means, the resources necessary to close, plug or
abandon the well as required by 40 CFR
122.42(g).
(b) Prior to granting approval for the operation
of a Class I well the Director shall consider the
following information:
(1) All available logging and testing program
data on the well;
(2) A demonstration of mechanical integrity
pursuant to § 146.8;
(3) The anticipated maximum pressure and flow
rate at which the permittee will operate;
(4) The results of the formation testing program;
(5) The actual injection procedure;
(6) The compatibility of injected waste with
fluids in the injection zone and minerals in both
the injection zone and the confining zone; and
(7) The status of corrective action on defective
wells in the area of review.
(c) Prior to granting approval for the plugging
and abandonment of a Class I well the Director
shall consider the following information:
(1) The type and number of plugs to be used;
(2) The placement of each plug including the
elevation of the top and bottom;
(3) The type and grade and quantity of cement
to be used;
(4) The method for placement of the plugs; and
(5) The procedure to be used to meet the re-
quirement of § 146.10(c).
(Clean Water Act, Safe Drinking Water Act, Clean Air
Act, Resource Conservation and Recovery Act: 42 U.S.C.
6905, 6912, 6925, 6927, 6974)
[45 FR 42500, June 24, 1980, as amended at 46 FR
43162, Aug. 27, 1981; 48 FR 14293, Apr. 1, 1983]
Sub pa it C—Criteria and Standards
Applicable to Class II Wells
§146.21 Applicability.
This subpart establishes criteria and standards
for underground injection control programs to reg-
ulate Class II wells.
§146.22 Construction requirements.
(a) All new Class II wells shall be sited in such
a fashion that they inject into a formation which
is separated from any USDW by a confining zone
that is free of known open faults or fractures with-
in the area of review.
10
-------
§146.23
(b)(l) All Class II injection wells shall be cased
and cemented to prevent movement of fluids into
or between underground sources of drinking water.
The casing and cement used in the construction of
each newly drilled well shall be designed for the
life expectancy of the well. In determining and
specifying casing and cementing requirements, the
following factors shall be considered:
(i) Depth to the injection zone;
(ii) Depth to the bottom of all USDWs; and
(iii) Estimated maximum and average injection
pressures;
(2) In addition the Director may consider infor-
mation on:
(i) Nature of formation fluids;
(ii) Lithology of injection and confining zones;
(iii) External pressure, internal pressure, and
axial loading;
(iv) Hole size;
(v) Size and grade of all casing strings; and
(vi) Class of cement.
(c) The requirements in paragraph (b) of this
section need not apply to existing or newly con-
verted Class II wells located in existing fields if:
(1) Regulatory controls for casing and cement-
ing existed for those wells at the time of drilling
and those wells are in compliance with those con-
trols; and
(2) Well injection will not result in the move-
ment of fluids into an underground source of
drinking water so as to create a significant risk to
the health of persons.
(d) The requirements in paragraph (b) of this
section need not apply to newly drilled wells in
existing fields if;
(1) They meet the requirements of the State for
casing and cementing applicable to that field at the
time of submission of the State program to the
Administrator; and
(2) Well injection will not result in the move-
ment of fluids into an underground source of
drinking water so as to create a significant risk to
the health of persons.
(e) Where a State did not have regulatory con-
trols for casing and cementing prior to the time of
the submission of the State program to the Admin-
istrator, the Director need not apply the casing and
cementing requirements in paragraph (b) of this
section if he submits as a part of his application
for primacy, an appropriate plan for casing and ce-
menting of existing, newly converted, and newly
drilled wells in existing fields, and the Adminis-
trator approves the plan.
(f) Appropriate logs and other tests shall be
conducted during the drilling and construction of
new Class II wells. A descriptive report interpret-
ing the results of that portion of those logs and
tests which specifically relate to (1) an USDW and
the confining zone adjacent to it, and (2) the injec-
tion and adjacent formations shall be prepared by
a knowledgeable log analyst and submitted to the
director. At a minimum, these logs and tests shall
include:
(1) Deviation checks on all holes constructed by
first drilling a pilot hole and then enlarging the
pilot hole, by reaming or another method. Such
checks shall be at sufficiently frequent intervals to
assure that vertical avenues for fluid movement in
the form of diverging holes are not created during
drilling.
(2) Such other logs and tests as may be needed
after taking into account the availability of similar
data in the area of the drilling site, the construc-
tion plan, and the need for additional information
that may arise from time to time as the construc-
tion of the well progresses. In determining which
logs and tests shall be required the following shall
be considered by the Director in setting logging
and testing requirements:
(i) For surface casing intended to protect under-
ground sources of drinking water in areas where
the lithology has not been determined:
(A) Electric and caliper logs before casing is in-
stalled; and
(B) A cement bond, temperature, or density log
after the casing is set and cemented.
(ii) for intermediate and long strings of casing
intended to facilitate injection:
(A) Electric porosity and gamma ray logs before
the casing is installed;
(B) Fracture finder logs; and
(C) A cement bond, temperature, or density log
after the casing is set and cemented.
(g) At a minimum, the following information
concerning the injection formation shall be deter-
mined or calculated for new Class II wells or
projects:
(1) Fluid pressure;
(2) Estimated fracture pressure;
(3) Physical and chemical characteristics of the
injection zone.
[45 FR 42500, June 24, 1980, as amended at 46 FR
43162, Aug. 27, 1981; 47 FR 5000, Feb. 3, 1982]
§146.23 Operating, monitoring, and re-
porting requirements.
(a) Operating requirements. Operating require-
ments shall, at a minimum, specify that:
(1) Injection pressure at the wellhead shall not
exceed a maximum which shall be calculated so as
to assure that the pressure during injection does
not initiate new fractures or propagate existing
fractures in the confining zone adjacent to the
USDWs. In no case shall injection pressure cause
the movement of injection or formation fluids into
an underground source of drinking water
11
-------
§146.24
(2) Injection between the outermost casing pro-
tecting underground sources of drinking water and
the well bore shall be prohibited.
(b) Monitoring requirements. Monitoring re-
quirements shall, at a minimum, include:
(1) Monitoring of the nature of injected fluids
at time intervals sufficiently frequent to yield data
representative of their characteristics;
(2) Observation of injection pressure, flow rate,
and cumulative volume at least with the following
frequencies:
(i) Weekly for produced fluid disposal oper-
ations;
(ii) Monthly for enhanced recovery operations;
(iii) Daily during the injection of liquid hydro-
carbons and injection for withdrawal of stored hy-
drocarbons; and
(iv) Daily during the injection phase of cyclic
steam operations
And recording of one observation of injection
pressure, flow rate and cumulative volume at rea-
sonable intervals no greater than 30 days.
(3) A demonstration of mechanical integrity
pursuant to § 146.8 at least once every five year
during the life of the injection well;
(4) Maintenance of the results of all monitoring
until the next permit review (see 40 CFR
144.52(a)(5)); and
(5) Hydrocarbon storage and enhanced recovery
may be monitored on a field or project basis rather
than on an individual well basis by manifold mon-
itoring. Manifold monitoring may be used in cases
of facilities consisting of more than one injection
well, operating with a common manifold. Separate
monitoring systems for each well are not required
provided the owner/operator demonstrates that
manifold monitoring is comparable to individual
well monitoring.
(c) Reporting requirements. (1) Reporting re-
quirements shall at a minimum include an annual
report to the Director summarizing the results of
monitoring required under paragraph (b) of this
section. Such summary shall include monthly
records of injected fluids, and any major changes
in characteristics or sources of injected fluid. Pre-
viously submitted information may be included by
reference.
(2) Owners or operators of hydrocarbon storage
and enhanced recovery projects may report on a
field or project basis rather than an individual well
basis where manifold monitoring is used.
(Clean Water Act, Safe Drinking Water Act, Clean Air
Act, Resource Conservation and Recovery Act; 42 U.S.C.
6905, 6912, 6925, 6927, 6974)
[45 FR 42500, June 24, 1980, as amended at 46 FR
43162, Aug. 27, 1981; 47 FR 5000, Feb. 3, 1982; 48 FR
14293, Apr. 1, 1983; 48 FR 31404, July 8, 1983]
§146.24 Information to be considered
by the Director.
This section sets forth the information which
must be considered by the Director in authorizing
Class II wells. Certain maps, cross-sections, tab-
ulations of wells within the area of review, and
other data may be included in the application by
reference provided they are current, readily avail-
able to the Director (for example, in the permitting
agency's files) and sufficiently identified to be re-
trieved. In cases where EPA issues the permit, all
the information in this section is to be submitted
to the Administrator.
(a) Prior to the issuance of a permit for an ex-
isting Class II well to operate or the construction
or conversion of a new Class II well the Director
shall consider the following:
(1) Information required in 40 CFR 144.31 and
144.3 l(g);
(2) A map showing the injection well or project
area for which a permit is sought and the applica-
ble area of review. Within the area of review, the
map must show the number or name and location
of all existing producing wells, injection wells,
abandoned wells, dry holes, and water wells. The
map may also show surface bodies of waters,
mines (surface and subsurface), quarries and other
pertinent surface features including residences and
roads, and faults if known or suspended. Only in-
formation of public record and pertinent informa-
tion known to the applicant is required to be in-
cluded on this map. This requirement does not
apply to existing Class II wells; and
(3) A tabulation of data reasonably available
from public records or otherwise known to the ap-
plicant on all wells within the area of review in-
cluded on the map required under paragraph (a)(2)
of this section which penetrate the proposed injec-
tion zone or, in the case of Class II wells operat-
ing over the fracture pressure of the injection for-
mation, all known wells within the area of review
which penetrate formations affected by the in-
crease in pressure. Such data shall include a de-
scription of each well's type, construction, date
drilled, location, depth, record of plugging and
complete, and any additional information the Di-
rector may require. In cases where the information
would be repetitive and the wells are of similar
age, type, and construction the Director may elect
to only require data on a representative number of
wells. This requirement does not apply to existing
Class II wells.
(4) Proposed operating data:
(i) Average and maximum daily rate and vol-
ume of fluids to be injected.
(ii) Average and maximum injection pressure;
and
12
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§146.32
(iii) Source and an appropriate analysis of the
chemical and physical characteristics of the injec-
tion fluid.
(5) Appropriate geological data on the injection
zone and confining zone including lithologic de-
scription, geological name, thickness and depth;
(6) Geologic name and depth to bottom of all
underground sources of drinking water which may
be affected by the injection;
(7) Schematic or other appropriate drawings of
the surface and subsurface construction details of
the well;
(8) In the case of new injection wells the cor-
rective action proposed to be taken by the appli-
cant under 40 CFR 122.44;
(9) A certificate that the applicant has assured
through a performance bond or other appropriate
means, the resources necessary to close plug or
abandon the well as required by 40 CFR
122.42(g);
(b) In addition the Director may consider the
following:
(1) Proposed formation testing program to ob-
tain the information required by § 146.22(g);
(2) Proposed stimulation program;
(3) Proposed injection procedure;
(4) Proposed contingency plans, if any, to cope
with well failures so as to prevent migration of
contaminating fluids into an underground source
of drinking water;
(5) Plans for meeting the monitoring require-
ments of § 146.23(b).
(c) Prior to granting approval for the operation
of a Class II well the Director shall consider the
following information:
(1) All available logging and testing program
data on the well;
(2) A demonstration of mechanical integrity
pursuant to § 146.8;
(3) The anticipated maximum pressure and flow
rate at which the permittee will operate.
(4) The results of the formation testing program;
(5) The actual injection procedure; and
(6) For new wells the status of corrective action
on defective wells in the area of review.
(d) Prior to granting approval for the plugging
and abandonment of a Class II well the Director
shall consider the following information:
(1) The type, and number of plugs to be used;
(2) The placement of each plug including the
elevation of top and bottom;
(3) The type, grade, and quantity of cement to
be used;
(4) The method of placement of the plugs; and
(5) The procedure to be used to meet the re-
quirements of § 146.10(c).
(Clean Water Act, Safe Drinking Water Act, Clean Air
Act, Resource Conservation and Recovery Act: 42 U.S.C.
6905, 6912, 6925, 6927, 6974)
[45 FR 42500, June 24, 1980, as amended at 46 FR
43162, Aug. 27, 1981; 47 FR 5000, Feb. 3, 1982; 48 FR
14293, Apr. 1, 1983]
Subpart D—Criteria and Standards
Applicable to Class III Wells
§146.31 Applicability.
This subpart establishes criteria and standards
for underground injection control programs to reg-
ulate Class III wells.
§146.32 Construction requirements.
(a) All new Class III wells shall be cased and
cemented to prevent the migration of fluids into or
between underground sources of drinking water.
The Director may waive the cementing require-
ment for new wells in existing projects or portions
of existing projects where he has substantial evi-
dence that no contamination of underground
sources of drinking water would result. The casing
and cement used in the construction of each newly
drilled well shall be designed for the life expect-
ancy of the well. In determining and specifying
casing and cementing requirements, the following
factors shall be considered:
(1) Depth to the injection zone;
(2) Injection pressure, external pressure, internal
pressure, axial loading, etc.;
(3) Hole size;
(4) Size and grade of all casing strings (wall
thickness, diameter, nominal weight, length, joint
specification, and construction material);
(5) Corrosiveness of injected fluids and forma-
tion fluids;
(6) Lithology of injection and confining zones;
and
(7) Type and grade of cement.
(b) Appropriate logs and other tests shall be
conducted during the drilling and construction of
new Class III wells. A descriptive report interpret-
ing the results of such logs and tests shall be pre-
pared by a knowledgeable log analyst and submit-
ted to the Director. The logs and tests appropriate
to each type of Class III well shall be determined
based on the intended function, depth, construction
and other characteristics of the well, availability of
similar data in the area of the drilling site and the
need for additional information that may arise
from time to time as the construction of the well
progresses. Deviation checks shall be conducted
on all holes where pilot holes and reaming are
used, unless the hole will be cased and cemented
by circulating cement to the surface. Where devi-
ation checks are necessary they shall be conducted
at sufficiently frequent intervals to assure that ver-
tical avenues for fluid migration in the form of di-
verging holes are not created during drillings.
13
-------
§146.33
(c) Where the injection zone is a formation
which is naturally water-bearing the following in-
formation concerning the injection zone shall be
determined or calculated for new Class III wells or
projects:
(1) Fluid pressure;
(2) Fracture pressure; and
(3) Physical and chemical characteristics of the
formation fluids.
(d) Where the injection formation is not a
water-bearing formation, the information in para-
graph (c)(2) of this section must be submitted.
(e) Where injection is into a formation which
contains water with less than 10,000 mg/1 IDS
monitoring wells shall be completed into the injec-
tion zone and into any underground sources of
drinking water above the injection zone which
could be affected by the mining operation. These
wells shall be located in such a fashion as to de-
tect any excursion of injection fluids, process by-
products, or formation fluids outside the mining
area or zone. If the operation may be affected by
subsidence or catastrophic collapse the monitoring
wells shall be located so that they will not be
physically affected.
(f) Where injection is into a formation which
does not contain water with less than 10,000 mg/
1 TDS, no monitoring wells are necessary in the
injection stratum.
(g) Where the injection wells penetrate an
USDW in an area subject to subsidence or cata-
strophic collapse an adequate number of monitor-
ing wells shall be completed into the USDW to
detect any movement of injected fluids, process
by-products or formation fluids into the USDW.
The monitoring wells shall be located outside the
physical influence of the subsidence or cata-
strophic collapse.
(h) In determining the number, location, con-
struction and frequency of monitoring of the mon-
itoring wells the following criteria shall be consid-
ered:
(1) The population relying on the USDW af-
fected or potentially affected by the injection oper-
ation;
(2) The proximity of the injection operation to
points of withdrawal of drinking water;
(3) The local geology and hydrology;
(4) The operating pressures and whether a nega-
tive pressure gradient is being maintained;
(5) The nature and volume of the injected fluid,
the formation water, and the process by-products;
and
(6) The injection well density.
[45 FR 42500, June 24, 1980, as amended at 46 FR
43163, Aug. 27, 1981; 47 FR 5000, Feb. 3, 1982]
§146.33 Operating, monitoring, and re-
porting requirements.
(a) Operating requirements. Operating require-
ments prescribed shall, at a minimum, specify that:
(1) Except during well stimulation injection
pressure at the wellhead shall be calculated so as
to assure that the pressure in the injection zone
during injection does not initiate new fractures or
propagate existing fractures in the injection zone.
In no case, shall injection pressure initiate frac-
tures in the confining zone or cause the migration
of injection or formation fluids into an under-
ground source of drinking water.
(2) Injection between the outermost casing pro-
tecting underground sources of drinking water and
the well bore is prohibited.
(b) Monitoring requirements. Monitoring re-
quirements shall, at a minimum, specify:
(1) Monitoring of the nature of injected fluids
with sufficient frequency to yield representative
data on its characteristics. Whenever the injection
fluid is modified to the extent that the analysis re-
quired by § 146.34(a)(7)(iii) is incorrect or incom-
plete, a new analysis as required by
§ 146.34(a)(7)(iii) shall be provided to the Direc-
tor.
(2) Monitoring of injection pressure and either
flow rate or volume semi-monthly, or metering
and daily recording of injected and produced fluid
volumes as appropriate.
(3) Demonstration of mechanical integrity pur-
suant to § 146.08 at least once every five years
during the life of the well for salt solution mining.
(4) Monitoring of the fluid level in the injection
zone semi-monthly, where appropriate and mon-
itoring of the parameters chosen to measure water
quality in the monitoring wells required by
§ 146.32(e), semi-monthly.
(5) Quarterly monitoring of wells required by
§ 146.32(g).
(6) All Class III wells may be monitored on a
field or project basis rather than an individual well
basis by manifold monitoring. Manifold monitor-
ing may be used in cases of facilities consisting of
more than one injection well, operating with a
common manifold. Separate monitoring systems
for each well are not required provided the owner/
operator demonstrates that manifold monitoring is
comparable to individual well monitoring.
(c) Reporting requirements. Reporting require-
ments shall, at a minimum, include:
(1) Quarterly reporting to the Director on re-
quired monitoring;
(2) Results of mechanical integrity and any
other periodic test required by the Director re-
ported with the first regular quarterly report after
the completion of the test; and
14
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§146.34
(3) Monitoring may be reported on a project or
field basis rather than individual well basis where
manifold monitoring is used.
[45 FR 42500, June 24, 1980, as amended at 46 FR
43163, Aug. 27, 1981; 46 FR 5001, Feb. 3, 1982; 48 FR
31404, July 8, 1983]
§146.34 Information to be considered
by the Director.
This section sets forth the information which
must be considered by the Director in authorizing
Class III wells. Certain maps, cross sections, tab-
ulations of wells within the area of review, and
other data may be included in the application by
reference provided they are current, readily avail-
able to the Director (for example, in the permitting
agency's files) and sufficiently identified to be re-
trieved. In cases where EPA issues the permit, all
the information in this section must be submitted
to the Administrator.
(a) Prior to the issuance of a permit for an ex-
isting Class III well or area to operate or the con-
struction of a new Class III well the Director shall
consider the following:
(1) Information required in 40 CFR 144.31 and
144.3 l(g);
(2) A map showing the injection well or project
area for which a permit is sought and the applica-
ble area of review. Within the area of review, the
map must show the number or name and location
of all existing producing wells, injection wells,
abandoned wells, dry holes, public water systems
and water wells. The map may also show surface
bodies of waters, mines (surface and subsurface),
quarries and other pertinent surface features in-
cluding residences and roads, and faults if known
or suspected. Only information of public record
and pertinent information known to the applicant
is required to be included on this map.
(3) A tabulation of data reasonably available
from public records or otherwise known to the ap-
plicant on wells within the area of review included
on the map required under paragraph (a)(2) of this
section which penetrate the proposed injection
zone. Such data shall include a description of each
well's type, construction, date drilled, location,
depth, record of plugging and completion, and any
additional information the Director may require. In
cases where the information would be repetitive
and the wells are of similar age, type, and con-
struction the Director may elect to only require
data on a representative number of wells.
(4) Maps and cross sections indicating the verti-
cal limits of all underground sources of drinking
water within the area of review, their position rel-
ative to the injection formation, and the direction
of water movement, where known, in every under-
ground source of drinking water which may be af-
fected by the proposed injection:
(5) Maps and cross sections detailing the geo-
logic structure of the local area;
(6) Generalized map and cross sections illustrat-
ing the regional geologic setting;
(7) Proposed operating data:
(i) Average and maximum daily rate and vol-
ume of fluid to be injected;
(ii) Average and maximum injection pressure;
and
(iii) Qualitative analysis and ranges in con-
centrations of all constituents of injected fluids.
The applicant may request Federal confidentiality
as specified in 40 CFR part 2. If the information
is proprietary an applicant may, in lieu of the
ranges in concentrations, choose to submit maxi-
mum concentrations which shall not be exceeded.
In such a case the applicant shall retain records of
the undisclosed concentrations and provide them
upon request to the Director as part of any en-
forcement investigation.
(8) Proposed formation testing program to ob-
tain the information required by § 146.32(c).
(9) Proposed stimulation program;
(10) Proposed injection procedure;
(11) Schematic or other appropriate drawings of
the surface and subsurface construction details of
the well;
(12) Plans (including maps) for meeting the
monitoring requirements of § 146.33(b);
(13) Expected changes in pressure, native fluid
displacement, direction of movement of injection
fluid;
(14) Contingency plans to cope with all shut-ins
or well failures so as to prevent the migration of
contaminating fluids into underground sources of
drinking water;
(15) A certificate that the applicant has assured,
through a performance bond, or other appropriate
means, the resources necessary to close, plug, or
abandon the well as required by 40 CFR
144.52(a)(7) and
(16) The corrective action proposed to be taken
under 40 CFR 144.55.
(b) Prior to granting approval for the operation
of a Class III well the Director shall consider the
following information:
(1) All available logging and testing data on the
well;
(2) A satisfactory demonstration of mechanical
integrity for all new wells and for all existing salt
solution wells pursuant to § 146.08;
(3) The anticipated maximum pressure and flow
rate at which the permittee will operate;
(4) The results of the formation testing program;
(5) The actual injection procedures; and
(6) The status of corrective action on defective
wells in the area of review.
15
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§146.51
(c) Prior to granting approval for the plugging
and abandonment of a Class III well the Director
shall consider the following information:
(1) The type and number of plugs to be used;
(2) The placement of each plug including the
elevation of the top and bottom;
(3) The type, grade, and quantity of cement to
be used;
(4) The method of placement of the plugs; and
(5) The procedure to be used to meet the re-
quirements of § 146.10(c).
(Clean Water Act, Safe Drinking Water Act, Clean Air
Act, Resource Conservation and Recovery Act: 42 U.S.C.
6905, 6912, 6925, 6927, 6974)
[45 FR 42500, June 24, 1980, as amended at 46 FR
43163, Aug. 27, 1981; 47 FR 5001, Feb. 3, 1982; 48 FR
14293, Apr. 1, 1983]
Subpart E—Criteria and Standards
Applicable to Class IV Injec-
tion Wells [Reserved]
Subpart F—Criteria and Standards
Applicable to Class V Injec-
tion Wells
§146.51 Applicability.
This subpart sets forth criteria and standards for
underground injection control programs to regulate
all injection not regulated in subparts B, C, D, and
E.
(a) Generally, wells covered by this subpart in-
ject non-hazardous fluids into or above formations
that contain underground sources of drinking
water. It includes all wells listed in § 146.5(e) but
is not limited to those types of injection wells.
(b) It also includes wells not covered in Class
IV that inject radioactive material listed in 10 CFR
part 20, appendix B, table II, column 2.
[45 FR 42500, June 24, 1980, as amended at 47 FR 5001,
Feb. 3, 1982]
Subpart G—Criteria and Standards
Applicable to Class I Hazard-
ous Waste Injection Wells
SOURCE: 53 FR 28148, July 26, 1988, unless otherwise
noted.
§146.61 Applicability
(a) This subpart establishes criteria and stand-
ards for underground injection control programs to
regulate Class I hazardous waste injection wells.
Unless otherwise noted this subpart supplements
the requirements of subpart A and applies instead
of subpart B to Class I hazardous waste injection
wells.
(b) Definitions.
Cone of influence means that area around the
well within which increased injection zone pres-
sures caused by injection into the hazardous waste
injection well would be sufficient to drive fluids
into an underground source of drinking water
(USDW).
Existing well means a Class I well which was
authorized prior to August 25, 1988, by an ap-
proved State program, or an EPA-administered
program or a well which has become a Class I
well as a result of a change in the definition of the
injected waste which would render the waste haz-
ardous under §261.3 of this part.
Injection interval means that part of the injec-
tion zone in which the well is screened, or in
which the waste is otherwise directly emplaced.
New well means any Class I hazardous waste
injection well which is not an existing well.
Transmissive fault or fracture is a fault or frac-
ture that has sufficient permeability and vertical
extent to allow fluids to move between formations.
§ 146.62 Minimum criteria for siting.
(a) All Class I hazardous waste injection wells
shall be sited such that they inject into a formation
that is beneath the lowermost formation containing
within one quarter mile of the well bore an under-
ground source of drinking water.
(b) The siting of Class I hazardous waste injec-
tion wells shall be limited to areas that are geo-
logically suitable. The Director shall determine
geologic suitability based upon:
(1) An analysis of the structural and strati-
graphic geology, the hydrogeology, and the seis-
micity of the region;
(2) An analysis of the local geology and
hydrogeology of the well site, including, at a mini-
mum, detailed information regarding stratigraphy,
structure and rock properties, aquifer
hydrodynamics and mineral resources; and
(3) A determination that the geology of the area
can be described confidently and that limits of
waste fate and transport can be accurately pre-
dicted through the use of models.
(c) Class I hazardous waste injection wells shall
be sited such that:
(1) The injection zone has sufficient permeabil-
ity, porosity, thickness and areal extent to prevent
migration of fluids into USDWs.
(2) The confining zone:
(i) Is laterally continuous and free of
transecting, transmissive faults or fractures over an
area sufficient to prevenet the movement of fluids
into a USDW; and
(ii) Contains at least one formation of sufficient
thickness and with lithologic and stress character-
istics capable of preventing vertical propagation of
fractures.
16
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§146.64
(d) The owner or operator shall demonstrate to
the satisfaction of the Director that:
(1) The confining zone is separated from the
base of the lowermost USDW by at least one se-
quence of permeable and less permeable strata that
will provide an added layer of protection for the
USDW in the event of fluid movement in an
unlocated borehole or transmissive fault; or
(2) Within the area of review, the piezometric
surface of the fluid in the injection zone is less
than the piezometric surface of the lowermost
USDW, considering density effects, injection pres-
sures and any significant pumping in the overlying
USDW; or
(3) There is no USDW present.
(4) The Director may approve a site which does
not meet the requirements in paragraphs (d) (1),
(2), or (3) of this section if the owner or operator
can demonstrate to the Director that because of the
geology, nature of the waste, or other consider-
ations, abandoned boreholes or other conduits
would not cause endangerment of USDWs.
§ 146.63 Area of review.
For the purposes of Class I hazardous waste
wells, this section shall apply to the exclusion of
§ 146.6. The area of review for Class I hazardous
waste injection wells shall be a 2-mile radius
around the well bore. The Director may specify a
larger area of review based on the calculated cone
of influence of the well.
§146.64 Corrective action for wells in
the area of review.
For the purposes of Class I hazardous waste
wells, this section shall apply to the exclusion of
§144.55 and §146.07.
(a) The owner or operator of a Class I hazard-
ous waste well shall as part of the permit applica-
tion submit a plan to the Director outlining the
protocol used to:
(1) Identify all wells penetrating the confining
zone or injection zone within the area of review;
and
(2) Determine whether wells are adequately
completed or plugged.
(b) The owner or operator of a Class I hazard-
ous waste well shall identify the location of all
wells within the area of review that penetrate the
injection zone or the confining zone and shall sub-
mit as required in § 146.70(a):
(1) A tabulation of all wells within the area of
review that penetrate the injection zone or the con-
fining zone; and
(2) A description of each well or type of well
and any records of its plugging or completion.
(c) For wells that the Director determines are
improperly plugged, completed, or abandoned, or
for which plugging or completion information is
unavailable, the applicant shall also submit a plan
consisting of such steps or modification as are
necessary to prevent movement of fluids into or
between USDWs. Where the plan is adequate, the
Director shall incorporate it into the permit as a
condition. Where the Director's review of an ap-
plication indicates that the permittee's plan is in-
adequate (based at a minimum on the factors in
paragraph (e) of this section), the Director shall:
(1) Require the applicant to revise the plan;
(2) Prescribe a plan for corrective action as a
condition of the permit; or
(3) Deny the application.
(d) Requirements:
(1) Existing injection wells. Any permit issued
for an existing Class I hazardous waste injection
well requiring corrective action other than pressure
limitations shall include a compliance schedule re-
quiring any corrective action accepted or pre-
scribed under paragraph (c) of this section. Any
such compliance schedule shall provide for com-
pliance no later than 2 years following issuance of
the permit and shall require observance of appro-
priate pressure limitations under paragraph (d)(3)
until all other corrective action measures have
been implemented.
(2) New injection wells. No owner or operator
of a new Class I hazardous waste injection well
may begin injection until all corrective actions re-
quired under this section have been taken.
(3) The Director may require pressure limita-
tions in lieu of plugging. If pressure limitations are
used in lieu of plugging, the Director shall require
as a permit condition that injection pressure be so
limited that pressure in the injection zone at the
site of any improperly completed or abandoned
well within the area of review would not be suffi-
cient to drive fluids into or between USDWs. This
pressure limitation shall satisfy the corrective ac-
tion requirement. Alternatively, such injection
pressure limitation may be made part of a compli-
ance schedule and may be required to be main-
tained until all other required corrective actions
have been implemented.
(e) In determining the adequacy of corrective
action proposed by the applicant under paragraph
(c) of this section and in determining the addi-
tional steps needed to prevent fluid movement into
and between USDWs, the following criteria and
factors shall be considered by the Director:
(1) Nature and volume of injected fluid;
(2) Nature of native fluids or byproducts of in-
jection;
(3) Geology;
(4) Hydrology;
(5) History of the injection operation;
(6) Completion and plugging records;
(7) Closure procedures in effect at the time the
well was closed;
17
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§146.65
(8) Hydraulic connections with USDWs;
(9) Reliability of the procedures used to identify
abandoned wells; and
(10) Any other factors which might affect the
movement of fluids into or between USDWs.
§146.65 Construction requirements.
(a) General. All existing and new Class I haz-
ardous waste injection wells shall be constructed
and completed to:
(1) Prevent the movement of fluids into or be-
tween USDWs or into any unauthorized zones;
(2) Permit the use of appropriate testing devices
and workover tools; and
(3) Permit continuous monitoring of injection
tubing and long string casing as required pursuant
to §146.67(f).
(b) Compatibility. All well materials must be
compatible with fluids with which the materials
may be expected to come into contact. A well
shall be deemed to have compatibility as long as
the materials used in the construction of the well
meet or exceed standards developed for such ma-
terials by the American Petroleum Institute, The
American Society for Testing Materials, or com-
parable standards acceptable to the Director.
(c) Casing and Cementing of New Wells. (1)
Casing and cement used in the construction of
each newly drilled well shall be designed for the
life expectancy of the well, including the post-clo-
sure care period. The casing and cementing pro-
gram shall be designed to prevent the movement
of fluids into or between USDWs, and to prevent
potential leaks of fluids from the well. In deter-
mining and specifying casing and cementing re-
quirements, the Director shall consider the follow-
ing information as required by § 146.70:
(i) Depth to the injection zone;
(ii) Injection pressure, external pressure, internal
pressure and axial loading;
(iii) Hole size;
(iv) Size and grade of all casing strings (well
thickness, diameter, nominal weight, length, joint
specification and construction material);
(v) Corrosiveness of injected fluid, formation
fluids and temperature;
(vi) Lithology of injection and confining zones;
(vii) Type or grade of cement; and
(viii) Quantity and chemical composition of the
injected fluid.
(2) One surface casing string shall, at a mini-
mum, extend into the confining bed below the
lowest formation that contains a USDW and be
cemented by circulating cement from the base of
the casing to the surface, using a minimum of
120% of the calculated annual volume. The Direc-
tor may require more than 120% when the geol-
ogy or other circumstances warrant it.
(3) At least one long string casing, using a suf-
ficient number of centralizers, shall extend to the
injection zone and shall be cemented by circulat-
ing cement to the surface in one or more stages:
(i) Of sufficient quantity and quality to with-
stand the maximum operating pressure; and
(ii) In a quantity no less than 120% of the cal-
culated volume necessary to fill the annular space.
The Director may require more than 120% when
the geology or other circumstances warrant it.
(4) Circulation of cement may be accomplished
by staging. The Director may approve an alter-
native method of cementing in cases where the ce-
ment cannot be recirculated to the surface, pro-
vided the owner or operator can demonstrate by
using logs that the cement is continuous and does
not allow fluid movement behind the well bore.
(5) Casings, including any casing connections,
must be rated to have sufficient structural strength
to withstand, for the design life of the well:
(i) The maximum burst and collapse pressures
which may be experienced during the construction,
operation and closure of the well; and
(ii) The maximum tensile stress which may be
experienced at any point along the length of the
casing during the construction, operation, and clo-
sure of the well.
(6) At a minimum, cement and cement
additivies must be of sufficient quality and quan-
tity to maintain integrity over the design life of the
well.
(d) Tubing and packer. (1) All Class I hazard-
ous waste injection wells shall inject fluids
through tubing with a packer set at a point speci-
fied by the Director.
(2) In determining and specifying requirements
for tubing and packer, the following factors shall
be considered:
(i) Depth of setting;
(ii) Characteristics of injection fluid (chemical
content, corrosiveness, temperature and density);
(iii) Injection pressure;
(iv) Annular pressure;
(v) Rate (intermittent or continuous), tempera-
ture and volume of injected fluid;
(vi) Size of casing; and
(vii) Tubing tensile, burst, and collapse
strengths.
(3) The Director may approve the use of a fluid
seal if he determines that the following conditions
are met:
(i) The operator demonstrates that the seal will
provide a level of protection comparable to a
packer;
(ii) The operator demonstrates that the staff is,
and will remain, adequately trained to operate and
maintain the well and to identify and interpret
variations in parameters of concern;
18
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§146.67
(iii) The permit contains specific limitations on
variations in annular pressure and loss of annular
fluid;
(iv) The design and construction of the well al-
lows continuous monitoring of the annular pres-
sure and mass balance of annular fluid; and
(v) A secondary system is used to monitor the
interface between the annulus fluid and the injec-
tion fluid and the permit contains requirements for
testing the system every three months and record-
ing the results.
§146.66 Logging, sampling, and testing
prior to new well operation.
(a) During the drilling and construction of a
new Class I hazardous waste injection well, appro-
priate logs and tests shall be run to determine or
verify the depth, thickness, porosity, permeability,
and rock type of, and the salinity of any entrained
fluids in, all relevant geologic units to assure con-
formance with performance standards in § 146.65,
and to establish accurate baseline data against
which future measurements may be compared. A
descriptive report interpreting results of such logs
and tests shall be prepared by a knowledgeable log
analyst and submitted to the Director. At a mini-
mum, such logs and tests shall include:
(1) Deviation checks during drilling on all holes
constructed by drilling a pilot hole which are en-
larged by reaming or another method. Such checks
shall be at sufficiently frequent intervals to deter-
mine the location of the borehole and to assure
that vertical avenues for fluid movement in the
form of diverging holes are not created during
drilling; and
(2) Such other logs and tests as may be needed
after taking into account the availability of similar
data in the area of the drilling site, the construc-
tion plan, and the need for additional information
that may arise from time to time as the construc-
tion of the well progresses. At a minimum, the
following logs shall be required in the following
situations:
(i) Upon installation of the surface casing:
(A) Resistivity, spontaneous potential, and cali-
per logs before the casing is installed; and
(B) A cement bond and variable density log,
and a temperature log after the casing is set and
cemented.
(ii) Upon installation of the long string casing:
(A) Resistivity, spontaneous potential, porosity,
caliper, gamma ray, and fracture finder logs before
the casing is installed; and
(B) A cement bond and variable density log,
and a temperature log after the casing is set and
cemented.
(iii) The Director may allow the use of an alter-
native to the above logs when an alternative will
provide equivalent or better information; and
(3) A mechanical integrity test consisting of:
(i) A pressure test with liquid or gas;
(ii) A radioactive tracer survey;
(iii) A temperature or noise log;
(iv) A casing inspection log, if required by the
Director; and
(v) Any other test required by the Director.
(b) Whole cores or sidewall cores of the confin-
ing and injection zones and formation fluid sam-
ples from the injection zone shall be taken. The
Director may accept cores from nearby wells if the
owner or operator can demonstrate that core re-
trieval is not possible and that such cores are rep-
resentative of conditions at the well. The Director
may require the owner or operator to core other
formations in the borehole.
(c) The fluid temperature, pH, conductivity,
pressure and the static fluid level of the injection
zone must be recorded.
(d) At a minimum, the following information
concerning the injection and confining zones shall
be determined or calculated for Class I hazardous
waste injection wells:
(1) Fracture pressure;
(2) Other physical and chemical characteristics
of the injection and confining zones; and
(3) Physical and chemical characteristics of the
formation fluids in the injection zone.
(e) Upon completion, but prior to operation, the
owner or operator shall conduct the following tests
to verify hydrogeologic characteristics of the injec-
tion zone:
(1) A pump test; or
(2) Injectivity tests.
(f) The Director shall have the opportunity to
witness all logging and testing by this Subpart.
The owner or operator shall submit a schedule of
such activities to the Director 30 days prior to
conducting the first test.
§146.67 Operating requirements.
(a) Except during stimulation, the owner or op-
erator shall assure that injection pressure at the
wellhead does not exceed a maximum which shall
be calculated so as to assure that the pressure in
the injection zone during injection does not initiate
new fractures or propagate existing fractures in the
injection zone. The owner or operator shall assure
that the injection pressure does not initiate frac-
tures or propagate existing fractures in the confin-
ing zone, nor cause the movement of injection or
formation fluids into a USDW.
(b) Injection between the outermost casing pro-
tecting USDWs and the well bore is prohibited.
(c) The owner or operator shall maintain an an-
nulus pressure that exceeds the operating injection
pressure, unless the Director determines that such
a requirement might harm the integrity of the well.
19
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§146.68
The fluid in the annulus shall be noncorrosive, or
shall contain a corrosion inhibitor.
(d) The owner or operator shall maintain me-
chanical integrity of the injection well at all times.
(e) Permit requirements for owners or operators
of hazardous waste wells which inject wastes
which have the potential to react with the injection
formation to generate gases shall include:
(1) Conditions limiting the temperature, pH or
acidity of the injected waste; and
(2) Procedures necessary to assure that pressure
imbalances which might cause a backflow or
blowout do not occur.
(f) The owner or operator shall install and use
continuous recording devices to monitor: the injec-
tion pressure; the flow rate, volume, and tempera-
ture of injected fluids; and the pressure on the an-
nulus between the tubing and the long string cas-
ing, and shall install and use:
(1) Automatic alarm and automatic shut-off sys-
tems, designed to sound and shut-in the well when
pressures and flow rates or other parameters ap-
proved by the Director exceed a range and/or gra-
dient specified in the permit; or
(2) Automatic alarms, designed to sound when
the pressures and flow rates or other parameters
approved by the Director exceed a rate and/or gra-
dient specified in the permit, in cases where the
owner or operator certifies that a trained operator
will be on-site at all times when the well is oper-
ating.
(g) If an automatic alarm or shutdown is trig-
gered, the owner or operator shall immediately in-
vestigate and identify as expeditiously as possible
the cause of the alarm or shutoff If, upon such in-
vestigation, the well appears to be lacking me-
chanical integrity, or if monitoring required under
paragraph (f) of this section otherwise indicates
that the well may be lacking mechanical integrity,
the owner or operator shall:
(1) Cease injection of waste fluids unless au-
thorized by the Director to continue or resume in-
jection.
(2) Take all necessary steps to determine the
presence or absence of a leak; and
(3) Notify the Director within 24 hours after the
alarm or shutdown.
(h) If a loss of mechanical integrity is discov-
ered pursuant to paragraph (g) of this section or
during periodic mechanical integrity testing, the
owner or operator shall:
(1) Immediately cease injection of waste fluids;
(2) Take all steps reasonably necessary to deter-
mine whether there may have been a release of
hazardous wastes or hazardous waste constituents
into any unauthorized zone;
(3) Notify the Director within 24 hours after
loss of mechanical integrity is discovered;
(4) Notify the Director when injection can be
expected to resume; and
(5) Restore and demonstrate mechanical integ-
rity to the satisfaction of the Director prior to re-
suming injection of waste fluids.
(i) Whenever the owner or operator obtains evi-
dence that there may have been a release of in-
jected wastes into an unauthorized zone:
(1) The owner or operator shall immediately
case injection of waste fluids, and:
(i) Notify the Director within 24 hours of ob-
taining such evidence;
(ii) Take all necessary steps to identify and
characterize the extent of any release;
(iii) Comply with any remediation plan speci-
fied by the Director;
(iv) Implement any remediation plan approved
by the Director; and
(v) Where such release is into a USDW cur-
rently serving as a water supply, place a notice in
a newspaper of general circulation.
(2) The Director may allow the operator to re-
sume injection prior to completing cleanup action
if the owner or operator demonstrates that the in-
jection operation will not endanger USDWs.
(j) The owner or operator shall notify the Direc-
tor and obtain his approval prior to conducting any
well workover.
§146.68 Testing and monitoring re-
quirements.
Testing and monitoring requirements shall at a
minimum include:
(a) Monitoring of the injected wastes. (1) The
owner or operator shall develop and follow an ap-
proved written waste analysis plan that describes
the procedures to be carried out to obtain a de-
tailed chemical and physical analysis of a rep-
resentative sample of the waste, including the
quality assurance procedures used. At a minimum,
the plan shall specify:
(i) The paramenters for which the waste will be
analyzed and the rationale for the selection of
these parameters;
(ii) The test methods that will be used to test
for these parameters; and
(iii) The sampling method that will be used to
obtain a representative sample of the waste to be
analyzed.
(2) The owner or operator shall repeat the anal-
ysis of the injected wastes as described in the
waste analysis plan at frequencies specified in the
waste analysis plan and when process or operating
changes occur that may significantly alter the
characteristics of the waste stream.
(3) The owner or operator shall conduct contin-
uous or periodic monitoring of selected parameters
as required by the Director.
20
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§146.69
(4) The owner or operator shall assure that the
plan remains accurate and the analyses remain rep-
resentative.
(b) Hydrogeologic compatibility determination.
The owner or operator shall submit information
demonstrating to the satisfaction of the Director
that the waste stream and its anticipated reaction
products will not alter the permeability, thickness
or other relevant characteristics of the confining or
injection zones such that they would no longer
meet the requirements specified in § 146.62.
(c) Compatibility of well materials. (1) The
owner or operator shall demonstrate that the waste
stream will be compatible with the well materials
with which the waste is expected to come into
contact, and submit to the Director a description of
the methodology used to make that determination.
Compatibility for purposes of this requirement is
established if contact with injected fluids will not
cause the well materials to fail to satisfy any de-
sign requirement imposed under § 146.65(b).
(2) The Director shall require continuous corro-
sion monitoring of the construction materials used
in the well for wells injecting corrosive waste, and
may require such monitoring for other waste, by:
(i) Placing coupons of the well construction ma-
terials in contact with the waste stream; or
(ii) Routing the waste stream through a loop
constructed with the material used in the well; or
(iii) Using an alternative method approved by
the Director.
(3) If a corrosion monitoring program is re-
quired:
(i) The test shall use materials identical to those
used in the construction of the well, and such ma-
terials must be continuously exposed to the operat-
ing pressures and temperatures (measured at the
well head) and flow rates of the injection oper-
ation; and
(ii) The owner or operator shall monitor the ma-
terials for loss of mass, thickness, cracking, pitting
and other signs of corrosion on a quarterly basis
to ensure that the well components meet the mini-
mum standards for material strength and perform-
ance set forth in § 146.65(b).
(d) Periodic mechanical integrity testing. In ful-
filling the requirements of § 146.8, the owner or
operator of a Class I hazardous waste injection
well shall conduct the mechanical integrity testing
as follows:
(1) The long string casing, injection tube, and
annular seal shall be tested by means of an ap-
proved pressure test with a liquid or gas annually
and whenever there has been a well workover;
(2) The bottom-hole cement shall be tested by
means of an approved radioactive tracer survey
annually;
(3) An approved temperature, noise, or other ap-
proved log shall be run at least once every five
years to test for movement of fluid along the bore-
hole. The Director may require such tests when-
ever the well is worked over;
(4) Casing inspection logs shall be run when-
ever the owner or operator conducts a workover in
which the injection string is pulled, unless the Di-
rector waives this requirement due to well con-
struction or other factors which limit the test's re-
liability, or based upon the satisfactory results of
a casing inspection log run within the previous
five years. The Director may require that a casing
inspection log be run every five years, if he has
reason to believe that the integrity of the long
string casing of the well may be adversely affected
by naturally-occurring or man-made events;
(5) Any other test approved by the Director in
accordance with the procedures in § 146.8(d) may
also be used.
(e) Ambient monitoring. (1) Based on a site-spe-
cific assessment of the potential for fluid move-
ment from the well or injection zone, and on the
potential value of monitoring wells to detect such
movement, the Director shall require the owner or
operator to develop a monitoring program. At a
minimum, the Director shall require monitoring of
the pressure buildup in the injection zone annually,
including at a minimum, a shut down of the well
for a time sufficient to conduct a valid observation
of the pressure fall-off curve.
(2) When prescribing a monitoring system the
Director may also require:
(i) Continuous monitoring for pressure changes
in the first aquifer overlying the confining zone.
When such a well is installed, the owner or opera-
tor shall, on a quarterly basis, sample the aquifer
and analyze for constituents specified by the Di-
rector;
(ii) The use of indirect, geophysical techniques
to determine the position of the waste front, the
water quality in a formation designated by the Di-
rector, or to provide other site specific data;
(iii) Periodic monitoring of the ground water
quality in the first aquifer overlying the injection
zone;
(iv) Periodic monitoring of the ground water
quality in the lowermost USDW; and
(v) Any additional monitoring necessary to de-
termine whether fluids are moving into or between
USDWs.
(f) The Director may require seismicity monitor-
ing when he has reason to believe that the injec-
tion activity may have the capacity to cause seis-
mic disturbances.
[53 FR 28148, July 26, 1988, as amended at 57 FR
46294, Oct. 7, 1992]
§ 146.69 Reporting requirements.
Reporting requirements shall, at a minimum, in-
clude:
21
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§146.70
(a) Quarterly reports to the Director containing:
(1) The maximum injection pressure;
(2) A description of any event that exceeds op-
erating parameters for annulus pressure or injec-
tion pressure as specified in the permit;
(3) A description of any event which triggers an
alarm or shutdown device required pursuant to
§ 146.67(f) and the response taken;
(4) The total volume of fluid injected;
(5) Any change in the annular fluid volume;
(6) The physical, chemical and other relevant
characteristics of injected fluids; and
(7) The results of monitoring prescribed under
§ 146.68.
(b) Reporting, within 30 days or with the next
quarterly report whichever comes later, the results
of:
(1) Periodic tests of mechanical integrity;
(2) Any other test of the injection well con-
ducted by the permittee if required by the Direc-
tor; and
(3) Any well workover.
§146.70 Information to be evaluated
by the Director.
This section sets forth the information which
must be evaluated by the Director in authorizing
Class I hazardous waste injection wells. For a new
Class I hazardous waste injection well, the owner
or operator shall submit all the information listed
below as part of the permit application. For an ex-
isting or converted Class I hazardous waste injec-
tion well, the owner or operator shall submit all
information listed below as part of the permit ap-
plication except for those items of information
which are current, accurate, and available in the
existing permit file. For both existing and new
Class I hazardous waste injection wells, certain
maps, cross-sections, tabulations of wells within
the area of review and other data may be included
in the application by reference provided they are
current and readily available to the Director (for
example, in the permitting agency's files) and suf-
ficiently identifiable to be retrieved. In cases
where EPA issues the permit, all the information
in this section must be submitted to the Adminis-
trator or his designee.
(a) Prior to the issuance of a permit for an ex-
isting Class I hazardous waste injection well to
operate or the construction or conversion of a new
Class I hazardous waste injection well, the Direc-
tor shall review the following to assure that the re-
quirements of this part and part 144 are met:
(1) Information required in § 144.31;
(2) A map showing the injection well for which
a permit is sought and the applicable area of re-
view. Within the area of review, the map must
show the number or name and location of all pro-
ducing wells, injection wells, abandoned wells, dry
holes, surface bodies of water, springs, mines (sur-
face and subsurface), quarries, water wells and
other pertinent surface features, including resi-
dences and roads. The map should also show
faults, if known or suspected;
(3) A tabulation of all wells within the area of
review which penetrate the proposed injection
zone or confining zone. Such data shall include a
description of each well's type, construction, date
drilled, location, depth, record of plugging and/or
completion and any additional information the Di-
rector may require;
(4) The protocol followed to identify, locate and
ascertain the condition of abandoned wells within
the area of review which penetrate the injection or
the confining zones;
(5) Maps and cross-sections indicating the gen-
eral vertical and lateral limits of all underground
sources of drinking water within the area of re-
view, their position relative to the injection forma-
tion and the direction of water movement, where
known, in each underground source of drinking
water which may be affected by the proposed in-
jection;
(6) Maps and cross-sections detailing the geo-
logic structure of the local area;
(7) Maps and cross-sections illustrating the re-
gional geologic setting;
(8) Proposed operating data;
(i) Average and maximum daily rate and vol-
ume of the fluid to be injected; and
(ii) Average and maximum injection pressure;
(9) Proposed formation testing program to ob-
tain an analysis of the chemical, physical and radi-
ological characteristics of and other information on
the injection formation and the confining zone;
(10) Proposed stimulation program;
(11) Proposed injection procedure;
(12) Schematic or other appropriate drawings of
the surface and subsurface construction details of
the well;
(13) Contingency plans to cope with all shut-ins
or well failures so as to prevent migration of
fluids into any USDW;
(14) Plans (including maps) for meeting mon-
itoring requirements of § 146.68;
(15) For wells within the area of review which
penetrate the injection zone or the confining zone
but are not properly completed or plugged, the
corrective action to be taken under § 146.64;
(16) Construction procedures including a ce-
menting and casing program, well materials speci-
fications and their life expectancy, logging proce-
dures, deviation checks, and a drilling, testing and
coring program; and
(17) A demonstration pursuant to part 144, sub-
part F, that the applicant has the resources nec-
essary to close, plug or abandon the well and for
post-closure care.
22
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§146.71
(b) Prior to the Director's granting approval for
the operation of a Class I hazardous waste injec-
tion well, the owner or operator shall submit and
the Director shall review the following informa-
tion, which shall be included in the completion re-
port:
(1) All available logging and testing program
data on the well;
(2) A demonstration of mechanical integrity
pursuant to § 146.68;
(3) The anticipated maximum pressure and flow
rate at which the permittee will operate;
(4) The results of the injection zone and confin-
ing zone testing program as required in
§ 146.70(a)(9);
(5) The actual injection procedure;
(6) The compatibility of injected waste with
fluids in the injection zone and minerals in both
the injection zone and the confining zone and with
the materials used to construct the well;
(7) The calculated area of review based on data
obtained during logging and testing of the well
and the formation, and where necessary revisions
to the information submitted under § 146.70(a) (2)
and (3).
(8) The status of corrective action on wells
identified in § 146.70(a)(15).
(c) Prior to granting approval for the plugging
and abandonment (i.e., closure) of a Class I haz-
ardous waste injection well, the Director shall re-
view the information required in §§ 146.71(a)(4)
and 146.72(a).
(d) Any permit issued for a Class I hazardous
waste injection well for disposal on the premises
where the waste is generated shall contain a cer-
tification by the owner or operator that:
(1) The generator of the hazardous waste has a
program to reduce the volume or quantity and tox-
icity of such waste to the degree determined by
the generator to be economically practicable; and
(2) Injection of the waste is that practicable
method of disposal currently available to the gen-
erator which minimizes the present and future
threat to human health and the environment.
§146.71 Closure.
(a) Closure Plan. The owner or operator of a
Class I hazardous waste injection well shall pre-
pare, maintain, and comply with a plan for closure
of the well that meets the requirements of para-
graph (d) of this section and is acceptable to the
Director. The obligation to implement the closure
plan survives the termination of a permit or the
cessation of injection activities. The requirement to
maintain and implement an approved plan is di-
rectly enforceable regardless of whether the re-
quirement is a condition of the permit.
(1) The owner or operator shall submit the plan
as a part of the permit application and, upon ap-
proval by the Director, such plan shall be a condi-
tion of any permit issued.
(2) The owner or operator shall submit any pro-
posed significant revision to the method of closure
reflected in the plan for approval by the Director
no later than the date on which notice of closure
is required to be submitted to the Director under
paragraph (b) of this section.
(3) The plan shall assure financial responsibility
as required in § 144.52(a)(7).
(4) The plan shall include the following infor-
mation:
(i) The type and number of plugs to be used;
(ii) The placement of each plug including the
elevation of the top and bottom of each plug;
(iii) The type and grade and quantity of material
to be used in plugging;
(iv) The method of placement of the plugs;
(v) Any proposed test or measure to be made;
(vi) The amount, size, and location (by depth)
of casing and any other materials to be left in the
well;
(vii) The method and location where casing is
to be parted, if applicable;
(viii) The procedure to be used to meet the re-
quirements of paragraph (d)(5) of this section;
(ix) The estimated cost of closure; and
(x) Any proposed test or measure to be made.
(5) The Director may modify a closure plan fol-
lowing the procedures of § 124.5.
(6) An owner or operator of a Class I hazardous
waste injection well who ceases injection tempo-
rarily, may keep the well open provided he:
(i) Has received authorization from the Director;
and
(ii) Has described actions or procedures, satis-
factory to the Director, that the owner or operator
will take to ensure that the well will not endanger
USDWs during the period of temporary disuse.
These actions and procedures shall include compli-
ance with the technical requirements applicable to
active injection wells unless waived by the Direc-
tor.
(7) The owner or operator of a well that has
ceased operations for more than two years shall
notify the Director 30 days prior to resuming oper-
ation of the well.
(b) Notice of intent to close. The owner or oper-
ator shall notify the Director at least 60 days be-
fore closure of a well. At the discretion of the Di-
rector, a shorter notice period may be allowed.
(c) Closure report. Within 60 days after closure
or at the time of the next quarterly report (which-
ever is less) the owner or operator shall submit a
closure report to the Director. If the quarterly re-
port is due less than 15 days after completion of
closure, then the report shall be submitted within
60 days after closure. The report shall be certified
as accurate by the owner or operator and by the
23
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§146.72
person who performed the closure operation (if
other than the owner or operator). Such report
shall consist of either:
(1) A statement that the well was closed in ac-
cordance with the closure plan previously submit-
ted and approved by the Director; or
(2) Where actual closure differed from the plan
previously submitted, a written statement specify-
ing the differences between the previous plan and
the actual closure.
(d) Standards for well closure. (1) Prior to clos-
ing the well, the owner or operator shall observe
and record the pressure decay for a time specified
by the Director. The Director shall analyze the
pressure decay and the transient pressure observa-
tions conducted pursuant to § 146.68(e)(l)(i) and
determine whether the injection activity has con-
formed with predicted values.
(2) Prior to well closure, appropriate mechanical
integrity testing shall be conducted to ensure the
integrity of that portion of the long string casing
and cement that will be left in the ground after
closure. Testing methods may include:
(i) Pressure tests with liquid or gas;
(ii) Radioactive tracer surveys;
(iii) Noise, temperature, pipe evaluation, or ce-
ment bond logs; and
(iv) Any other test required by the Director.
(3) Prior to well closure, the well shall be
flushed with a buffer fluid.
(4) Upon closure, a Class I hazardous waste
well shall be plugged with cement in a manner
that will not allow the movement of fluids into or
between USDWs.
(5) Placement of the cement plugs shall be ac-
complished by one of the following:
(i) The Balance Method;
(ii) The Dump Bailer Method;
(iii) The Two-Plug Method; or
(iv) An alternate method, approved by the Di-
rector, that will reliably provide a comparable
level of protection.
(6) Each plug used shall be appropriately tagged
and tested for seal and stability before closure is
completed.
(7) The well to be closed shall be in a state of
static equilibrium with the mud weight equalized
top to bottom, either by circulating the mud in the
well at least once or by a comparable method pre-
scribed by the Director, prior to the placement of
the cement plug(s).
§146.72 Post-closure care.
(a) The owner or operator of a Class I hazard-
ous waste well shall prepare, maintain, and com-
ply with a plan for post-closure care that meets the
requirements of paragraph (b) of this section and
is acceptable to the Director. The obligation to im-
plement the post-closure plan survives the termi-
nation of a permit or the cessation of injection ac-
tivities. The requirement to maintain an approved
plan is directly enforceable regardless of whether
the requirement is a condition of the permit.
(1) The owner or operator shall submit the plan
as a part of the permit application and, upon ap-
proval by the Director, such plan shall be a condi-
tion of any permit issued.
(2) The owner or operator shall submit any pro-
posed significant revision to the plan as appro-
priate over the life of the well, but no later than
the date of the closure report required under
§ 146.71(c).
(3) The plan shall assure financial responsibility
as required in § 146.73.
(4) The plan shall include the following infor-
mation:
(i) The pressure in the injection zone before in-
jection began;
(ii) The anticipated pressure in the injection
zone at the time of closure;
(iii) The predicted time until pressure in the in-
jection zone decays to the point that the well's
cone of influence no longer intersects the base of
the lowermost USDW;
(iv) Predicted position of the waste front at clo-
sure;
(v) The status of any cleanups required under
§ 146.64; and
(vi) The estimated cost of proposed post-closure
care.
(5) At the request of the owner or operator, or
on his own initiative, the Director may modify the
post-closure plan after submission of the closure
report following the procedures in § 124.5.
(b) The owner or operator shall:
(1) Continue and complete any cleanup action
required under § 146.64, if applicable;
(2) Continue to conduct any groundwater mon-
itoring required under the permit until pressure in
the injection zone decays to the point that the
well's cone of influence no longer intersects the
base of the lowermost USDW. The Director may
extend the period of post-closure monitoring if he
determines that the well may endanger a USDW.
(3) Submit a survey plat to the local zoning au-
thority designated by the Director. The plat shall
indicate the location of the well relative to perma-
nently surveyed benchmarks. A copy of the plat
shall be submitted to the Regional Administrator
of the appropriate EPA Regional Office.
(4) Provide appropriate notification and infor-
mation to such State and local authorities as have
cognizance over drilling activities to enable such
State and local authorities to impose appropriate
conditions on subsequent drilling activities that
may penetrate the well's confining or injection
zone.
24
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(5) Retain, for a period of three years following
well closure, records reflecting the nature, com-
position and volume of all injected fluids. The Di-
rector shall require the owner or operator to de-
liver the records to the Director at the conclusion
of the retention period, and the records shall there-
after be retained at a location designated by the
Director for that purpose.
(c) Each owner of a Class I hazardous waste in-
jection well, and the owner of the surface or sub-
surface property on or in which a Class I hazard-
ous waste injection well is located, must record a
notation on the deed to the facility property or on
some other instrument which is normally exam-
ined during title search that will in perpetuity pro-
vide any potential purchaser of the property the
following information:
(1) The fact that land has been used to manage
hazardous waste;
(2) The name of the State agency or local au-
thority with which the plat was filed, as well as
the address of the Regional Environmental Protec-
tion Agency Office to which it was submitted;
§146.73
(3) The type and volume of waste injected, the
injection interval or intervals into which it was in-
jected, and the period over which injection oc-
curred.
§146.73 Financial responsibility for
post-closure care.
The owner or operator shall demonstrate and
maintain financial responsibility for post-closure
by using a trust fund, surety bond, letter of credit,
financial test, insurance or corporate guarantee that
meets the specifications for the mechanisms and
instruments revised as appropriate to cover closure
and post-closure care in 40 CFR part 144, subpart
F. The amount of the funds available shall be no
less than the amount identified in
§ 146.72(a)(4)(vi). The obligation to maintain fi-
nancial responsibility for post-closure care sur-
vives the termination of a permit or the cessation
of injection. The requirement to maintain financial
responsibility is enforceable regardless of whether
the requirement is a condition of the permit.
25
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PART 147—STATE UNDERGROUND
INJECTION CONTROL PROGRAMS
Subpart A—General Provisions
Sec.
147.1 Purpose and scope.
147.2 Severability of provisions.
Subpart B—Alabama
147.50 State-administered program—Class II wells.
147.51 State-administered program—Class I, III, IV,
and V wells.
147.60 EPA-administered program—Indian lands.
Subpart C—Alaska
147.100 State-administered program—Class II wells.
147.101 EPA-administered program.
147.102 Aquifer exemptions.
147.103 Existing Class I, II (except enhanced recovery
and hydrocarbon storage) and III wells authorized by
rule.
147.104 Existing Class II enhanced recovery and hydro-
carbon storage wells authorized by rule.
Subpart D—Arizona
147.150 State-administered program. [Reserved]
147.151 EPA-administered program.
147.152 Aquifer exemptions. [Reserved]
Subpart E—Arkansas
147.200 State-administered program—Class I, III, IV,
and V wells.
147.201 State-administered program—Class II wells.
[Reserved]
147.205 EPA-administered program—Indian lands.
Subpart F—California
147.250 State-administered program—Class II wells.
147.251 EPA-admimstered program—Class I, III, IV,
and V wells and Indian lands.
147.252 Aquifer exemptions. [Reserved]
147.253 Existing Class I, II (except enhanced recovery
and hydrocarbon storage) and III wells authorized by
rule.
Subpart G—Colorado
147.300 State-administered program—Class II wells.
147.301 EPA-admimstered program—Class I, III, IV, V
wells and Indian lands.
147.302 Aquifer exemptions.
147.303 Existing Class I, II (except enhanced recovery
and hydrocarbon storage) and III wells authorized by
rule.
147.304 Existing Class II enhanced recovery and hydro-
carbon storage wells authorized by rule.
147.305 Requirements for all wells.
Subpart H—Connecticut
147.350 State-administered program.
147351—147352 [Reserved]
147.353 EPA- administered program — Indian lands.
147354—147359 [Reserved]
Subpart I— Delaware
1 47.400 State- administered program.
1 47.401—1 47.402 [Reserved]
147.403 EPA- administered program — Indian lands.
1 47.404—1 47.449 [Reserved]
Subpart J — District of Columbia
147.450 State- administered program. [Reserved]
147.451 EPA- administered program.
147.452 Aquifer exemptions. [Reserved]
Subpart K— Florida
147.500 State- administered program — Class I, III, IV,
and V wells.
147.501 EPA- administered program — Class II wells and
Indian lands.
147.502 Aquifer exemptions. [Reserved]
147.503 Existing Class II (except enhanced recovery
and hydrocarbon storage) wells authorized by rule.
147.504 Existing Class II enhanced recovery and hydro-
carbon storage wells authorized by rule.
Subpart L — Georgia
147.550 State- administered program.
147.551—147.552 [Reserved]
147.553 EPA- administered program — Indian lands.
147.554—147.559 [Reserved]
Subpart M— Hawaii
147.600 State- administered program. [Reserved]
147.601 EPA- administered program.
Subpart N— Idaho
147.650 State- administrative program — Class I, II,
IV, and V wells.
147.651 EPA- administered program — Indian lands.
147.652 Aquifer exemptions. [Reserved]
III,
Subpart O — Illinois
147.700 State- administered program — Class I, III, IV,
and V wells.
147.701 State- administered program — Class II wells.
147.703 EPA- administered program — Indian lands.
Subpart P — Indiana
147.750 State- administered program — Class II wells.
147.751 EPA- administered program.
147.752 Aquifer exemptions. [Reserved]
147.753 Existing Class I and III wells authorized by
rule.
Subpart Q — Iowa
147.800 State- administered program. [Reserved]
147.801 EPA- administered program.
147.802 Aquifer exemptions. [Reserved]
-------
Subpart R—Kansas
147.850 State-administered program—Class I, III, IV
and V wells.
147.851 State-administered program—Class II wells.
147.852—147.859 [Reserved]
147.860 EPA-administered program—Indian lands.
Subpart S—Kentucky
147.900 State-administered program. [Reserved]
147.901 EPA-administered program.
147.902 Aquifer exemptions. [Reserved]
147.903 Existing Class I, II (except enhanced recovery
and hydrocarbon storage) and III wells authorized by
rule.
147.904 Existing Class II enhanced recovery and hydro-
carbon storage wells authorized by rule.
147.905 Requirements for all wells—area of review.
Subpart T—Louisiana
147.950 State-administered program.
147.951 EPA-administered program—Indian lands.
Subpart U—Maine
147.1000 State-administered program.
147.1001 EPA-administered program—Indian lands.
Subpart V—Maryland
147.1050 State-administered program—Class I, II, III,
IV, and V wells.
147.1051—147.1052 [Reserved]
147.1053 EPA-administered program—Indian lands.
147.1054—147.1099 [Reserved]
Subpart W—Massachusetts
147.1100 State-administered program.
147.1101 EPA-administered program—Indian lands.
Subpart X—Michigan
147.1150 State-administered program. [Reserved]
147.1151 EPA-administered program.
147.1152 Aquifer exemptions. [Reserved]
147.1153 Existing Class I, II (except enhanced recovery
and hydrocarbon storage) and III wells authorized by
rule.
147.1154 Existing Class II enhanced recovery and hy-
drocarbon storage wells authorized by rule.
147.1155 Requirements for all wells.
Subpart Y—Minnesota
147.1200 State-administered program. [Reserved]
147.1201 EPA-administered program.
147.1202 Aquifer exemptions. [Reserved]
147.1210 Requirements for Indian lands.
Subpart 2.—Mississippi
147.1250 State-administered program—Class I, III, IV,
and V wells.
147.1251 State-administered program—Class II wells.
147.1252 EPA-administered program—Indian lands.
Subpart AA—Missouri
147.1300 State-administered program.
147.1301 State-administered program—Class I, III, IV,
and V wells.
147.1302 Aquifer exemptions. [Reserved]
147.1303 EPA-administered program—Indian lands.
Subpart BB—Montana
147.1350 State-administered programs—Class II wells
147.1351 EPA-administered program.
147.1352 Aquifer exemptions.
147.1353 Existing Class I, II (except enhanced recovery
and hydrocarbon storage) and III wells authorized by
rule.
147.1354 Existing Class II enhanced recovery and hy-
drocarbon storage wells authorized by rule.
147.1355 Requirements for all wells.
APPENDIX A TO SUBPART BB OF PART 147—STATE RE-
QUIREMENTS INCORPORATED BY REFERENCE IN SUB-
PART BB OF PART 147 OF THE CODE OF FEDERAL
REGULATIONS.
Subpart CC—Nebraska
147.1400 State-administered program—Class II wells.
147.1401 State-administered program—Class I, III, IV,
and V wells.
147.1402 Aquifer exemptions. [Reserved]
147.1403 EPA-administered program—Indian lands.
Subpart DD—Nevada
147.1450 State-administered program.
147.1451 EPA-administered program—Indian lands.
147.1452 Aquifer exemptions. [Reserved]
147.1453 Existing Class I, II (except enhanced recovery
and hydrocarbon storage) and III wells authorized by
rule.
147.1454 Existing Class II enhanced recovery and hy-
drocarbon storage wells authorized by rule.
Subpart EE—New Hampshire
147.1500 State-administered program.
147.1501 EPA-administered program—Indian lands.
Subpart FF—New Jersey
147.1550 State-administered program.
147.1551 EPA-administered program—Indian lands.
Subpart GG—New Mexico
147.1600 State-administered program—Class II wells.
147.1601 State-administered program—Class I, III, IV
and V wells.
147.1603 EPA-administered program—Indian lands.
Subpart HH—New York
147.1650 State-administered program. [Reserved]
147.1651 EPA-administered program.
147.1652 Aquifer exemptions.
147.1653 Existing Class I, II (except enhanced recovery
and hydrocarbon storage) and III wells authorized by
rule.
147.1654 Existing Class II enhanced recovery and hy-
drocarbon storage wells authorized by rule.
147.1655 Requirements for wells authorized by permit.
-------
Subpart II—North Carolina
147.1700 State-administered program.
147.1701—147.1702 [Reserved]
147.1703 EPA-administered program—Indian lands.
147.1704—147.1749 [Reserved]
Subpart JJ—North Dakota
147.1750 State-administered program—Class II wells.
147.1751 State-administered program—Class I, III, IV
and V wells.
147.1752 EPA-administered program—Indian lands.
Subpart KK—Ohio
147.1800 State-administered program—Class II wells.
147.1801 State-administered program—Class I, III, IV
and V wells.
147.1802 Aquifer exemptions. [Reserved]
147.1803 Existing Class I and III wells authorized by
rule—maximum injection pressure.
147.1805 EPA-administered program—Indian lands.
Subpart LL—Oklahoma
147.1850 State-administered program—Class I, III, IV
and V wells.
147.1851 State-administered program—Class II wells.
147.1852 EPA-administered program—Indian lands.
Subpart MM—Oregon
147.1900 State-administered program.
147.1901 EPA-administered program—Indian lands.
Subpart NN—Pennsylvania
147.1950 State-administered program. [Reserved]
147.1951 EPA-administered program.
147.1952 Aquifer exemptions.
147.1953 Existing Class I, II (except enhanced recovery
and hydrocarbon storage) and III wells authorized by
rule.
147.1954 Existing Class II enhanced recovery and hy-
drocarbon storage wells authorized by rule.
147.1955 Requirements for wells authorized by permit.
Subpart OO—Rhode Island
147.2000 State-administered program—Class I, II, III,
IV, and V wells.
147.2001 EPA-administered program—Indian lands.
Subpart PP—South Carolina
147.2050 State-administered program.
147.2051 EPA-administered program—Indian lands.
Subpart QQ—South Dakota
147.2100 State-administered program—Class II wells.
147.2101 EPA-administered program—Class I, III, IV
and V wells and all wells on Indian lands.
147.2102 Aquifer exemptions.
147.2103 Existing Class II enhanced recovery and hy-
drocarbon storage wells authorized by rule.
147.2104 Requirements for all wells.
Subpart RR—Tennessee
147.2150 State-administered program. [Reserved]
147.2151 EPA-administered program.
147.2152 Aquifer exemptions. [Reserved]
147.2153 Existing Class I, II (except enhanced recovery
and hydrocarbon storage) and III wells authorized by
rule.
147.2154 Existing Class II enhanced recovery and hy-
drocarbon storage wells authorized by rule.
147.2155 Requirements for all wells—area of review.
Subpart SS—Texas
147.2200 State-administered program—Class I, III, IV,
and V wells.
147.2201 State-administered program—Class II wells.
147.2205 EPA-administered program—Indian lands.
Subpart TT—Utah
147.2250 State-administered program—Class I, III, IV,
and V wells.
147.2251 State-administered program—Class II wells.
147.2253 EPA-administered program—Indian lands.
Subpart UU—Vermont
147.2300 State-administered program.
147.2301—147.2302 [Reserved]
147.2303 EPA-administered program—Indian lands.
Subpart VV—Virginia
147.2350 State-administered program. [Reserved]
147.2351 EPA-administered program.
147.2352 Aquifer exemptions. [Reserved]
Subpart WW—Washington
147.2400 State-administered program—Class I, II, III,
IV, and V wells.
147.2403 EPA-administered program—Indian lands.
147.2404 EPA-administered program—Colville Reserva-
tion.
Subpart XX—West Virginia
147.2450—147.2452 [Reserved]
147.2453 EPA-administered program—Indian lands.
147.2454—147.2499 [Reserved]
Subpart YY—Wisconsin
147.2500 State-administered program.
147.2510 EPA-administered program—Indian lands.
Subpart 7.7.—Wyoming
147.2550 State-administered program—Class I, III, IV,
and V wells.
147.2551 State-administered program—Class II wells.
147.2553 EPA-administered program—Indian lands.
147.2554 Aquifer exemptions.
Subpart AAA—Guam
147.2600 State-administered program.
147.2601 EPA-administered program—Indian lands.
-------
§147.1
Subpart BBB—Puerto Rico
147.2650 State-administered program—Class I, II, III,
IV, and V wells.
147.2651 EPA-administered program—Indian lands.
Subpart CCC—Virgin Islands
147.2700 State-administered program. [Reserved]
147.2701 EPA-administered program.
Subpart ODD—American Samoa
147.2750 State administered program. [Reserved]
147.2751 EPA-administered program.
147.2752 Aquifer exemptions. [Reserved]
Subpart EEE—Commonwealth of the
Northern Mariana Islands
147.2800 State-administered program—Class I, II, III,
IV, and V wells.
147.2801 EPA-administered program.
147.2802 Aquifer exemptions. [Reserved]
Subpart FFF—Trust Territory of the Pacific
Islands
147.2850 State-administered program. [Reserved]
147.2851 EPA-administered program.
147.2852 Aquifer exemptions. [Reserved]
Subpart GGG—Osage Mineral Reserve—
Class II Wells
147.2901 Applicability and scope.
147.2902 Definitions.
147.2903 Prohibition of unauthorized injection.
147.2904 Area of review.
147.2905 Plugging and abandonment.
147.2906 Emergency permits.
147.2907 Confidentiality of information.
147.2908 Aquifer exemptions.
147.2909 Authorization of existing wells by rule.
147.2910 Duration of authorization by rule.
147.2911 Construction requirements for wells authorized
by rule.
147.2912 Operating requirements for wells authorized
by rule.
147.2913 Monitoring and reporting requirements for
wells authorized by rule.
147.2914 Corrective action for wells authorized by rule.
147.2915 Requiring a permit for wells authorized by
rule.
147.2916 Coverage of permitting requirements.
147.2917 Duration of permits.
147.2918 Permit application information.
147.2919 Construction requirements for wells authorized
by permit.
147.2920 Operating requirements for wells authorized
by permit.
147.2921 Schedule of compliance.
147.2922 Monitoring and reporting requirements for
wells authorized by permit.
147.2923 Corrective action for wells authorized by per-
mit.
147.2924 Area permits.
147.2925 Standard permit conditions.
147.2926 Permit transfers.
147.2927 Permit modification.
147.2928 Permit termination.
147.2929 Administrative permitting procedures.
Subpart HHH—Lands of the Navajo, Ute
Mountain Ute, and All Other New Mex-
ico Tribes
147.3000 EPA-administered program.
147.3001 Definition.
147.3002 Public notice of permit actions.
147.3003 Aquifer exemptions.
147.3004 Duration of rule authorization for existing
Class I and III wells.
147.3005 Radioactive waste injection wells.
147.3006 Injection pressure for existing Class II wells
authorized by rule.
147.3007 Application for a permit.
147.3008 Criteria for aquifer exemptions.
147.3009 Area of review.
147.3010 Mechanical integrity tests.
147.3011 Plugging and abandonment of Class III wells.
147.3012 Construction requirements for Class I wells.
147.3013 Information to be considered for Class I wells.
147.3014 Construction requirements for Class III wells.
147.3015 Information to be considered for Class III
wells.
147.3016 Criteria and standards applicable to Class V
wells.
APPENDIX A TO SUBPART HHH—EXEMPTED AQUIFERS
IN NEW MEXICO.
Subpart III—Lands of Certain Oklahoma
Indian Tribes
147.3100 EPA-administered program.
147.3101 Public notice of permit actions.
147.3102 Plugging and abandonment plans.
147.3103 Fluid seals.
147.3104 Notice of abandonment.
147.3105 Plugging and abandonment report.
147.3106 Area of review.
147.3107 Mechanical integrity.
147.3108 Plugging Class I, II, and III wells.
147.3109 Timing of mechanical integrity test.
AUTHORITY: 42 U.S.C. 300h; and 42 U.S.C. 6901 et
seq.
SOURCE: 49 FR 20197, May 11, 1984, unless otherwise
noted.
Subpart A—General Provisions
§ 147.1 Purpose and scope.
(a) This part sets forth the applicable Under-
ground Injection Control (UIC) programs for each
of the states, territories, and possessions identified
pursuant to the Safe Drinking Water Act (SDWA)
as needing a UIC program.
(b) The applicable UIC program for a State is
either a State-administered program approved by
EPA, or a federally-administered program promul-
gated by EPA. In some cases, the UIC program
may consist of a State-administered program appli-
-------
§147.51
cable to some classes of wells and a federally-ad-
ministered program applicable to other classes of
wells. Approval of a State program is based upon
a determination by the Administrator that the pro-
gram meets the requirements of section 1422 or
section 1425 of the Safe Drinking Water Act and
the applicable provisions of parts 124, 144, and
146 of this chapter. A federally-administered pro-
gram is promulgated in those instances where the
state has failed to submit a program for approval
or where the submitted program does not meet the
minimum statutory and regulatory requirements.
(c) In the case of State programs approved by
EPA pursuant to section 1422 of the SOW A, each
State subpart describes the major elements of such
programs, including State statutes and regulations,
Statement of Legal Authority, Memorandum of
Agreement, and Program Description. State stat-
utes and regulations that contain standards, re-
quirements, and procedures applicable to owners
or operators have been incorporated by reference
pursuant to regulations of the Office of the Federal
Register. Material incorporated by reference is
available for inspection in the appropriate EPA
Regional Office, in EPA Headquarters, and at the
Office of the Federal Register Information Center,
Room 8301, 800 North Capitol Street, NW., suite
700, Washington, DC. Other State statutes and
regulations containing standards and procedures
that constitute elements of the State program but
do not apply directly to owners or operators have
been listed but have not been incorporated by ref-
erence.
(d) In the case of State programs promulgated
under section 1422 that are to be administered by
EPA, the State subpart makes applicable the provi-
sions of parts 124, 144, and 146, and provides ad-
ditional requirements pertinent to the specific State
program.
(e) Regulatory provisions incorporated by ref-
erence (in the case of approved State programs) or
promulgated by EPA (in the case of EPA-adminis-
tered programs), and all permit conditions or per-
mit denials issued pursuant to such regulations, are
enforceable by the Administrator pursuant to sec-
tion 1423 of the SOW A.
(f) The information requirements located in the
following sections have been cleared by the Office
of Management and Budget: Sections 147.104,
147.304, 147.754, 147.904, 147.1154, 147.1354,
147.1454, 147.1654, 147.1954, and 147.2154.
The OMB clearance number is No. 2040-0042.
§147.2 Severability of provisions.
The provisions in this part and the various ap-
plications thereof are distinct and severable. If any
provision of this part or the application thereof to
any person or circumstances is held invalid, such
invalidity shall not affect other provisions or appli-
cation of such provision to other persons or cir-
cumstances which can be given effect without the
invalid provision or application.
Subpart B—Alabama
§147.50 State-administered program—
Class II wells.
The UIC program for Class II wells in the State
of Alabama, except those on Indian lands, is the
program administered by the State Oil and Gas
Board of Alabama, approved by EPA pursuant to
section 1425 of the SOW A. Notice of this ap-
proval was published in the FEDERAL REGISTER on
August 2, 1982 (47 FR 33268); the effective date
of this program is August 2, 1982. This program
consists of the following elements, as submitted to
EPA in the State's program application:
(a) Incorporation by reference. The require-
ments set forth in the State statutes and regulations
cited in this paragraph are hereby incorporated by
reference and made a part of the applicable UIC
program under the SDWA for the State of Ala-
bama. This incorporation by reference was ap-
proved by the Director of the Federal Register on
June 25, 1984.
(1) Code of Alabama Sections 9-17-1 through
9-17-109 (Cumm. Supp. 1989);
(2) State Oil and Gas Board of Alabama Ad-
ministrative Code, Oil and Gas Report 1 (supple-
mented through May 1989), Rules and Regulations
Governing the Conservation of Oil and Gas in
Alabama, and Oil and Gas Statutes of Alabama
with Oil and Gas Board Forms, §400-1-2 and
§400-1-5-. 04.
(b) The Memorandum of Agreement between
EPA Region IV and the Alabama Oil and Gas
Board, signed by the EPA Regional Administrator
on June 15, 1982.
(c) Statement of legal authority. "State Oil and
Gas Board has Authority to Carry Out Under-
ground Injection Control Program Relating to
Class II Wells as Described in Federal Safe Drink-
ing Water Act—Opinion by Assistant Attorney
General," May 28, 1982.
(d) The Program Description and any other ma-
terials submitted as part of the application or as
supplements thereto.
[49 FR 20197, May 11, 1984, as amended at 53 FR
43086, Oct. 25, 1988; 56 FR 9411, Mar. 6, 1991]
§147.51 State-administered program—
Class I, III, IV, and V wells.
The UIC program for Class I, III, IV and V
wells in the State of Alabama, except those on In-
dian lands, is the program administered by the
Alabama Department of Environmental Manage-
ment, approved by EPA pursuant to section 1422
of the SDWA. Notice of this approval was pub-
-------
§147.60
lished in the FEDERAL REGISTER on August 25,
1983 (48 FR 38640); the effective date of this pro-
gram is August 25, 1983. This program consists of
the following elements, as submitted to EPA in the
State's program application:
(a) Incorporation by reference. The require-
ments set forth in the State statutes and regulations
cited in this paragraph are hereby incorporated by
reference and made a part of the applicable UIC
program under the SDWA for the State of Ala-
bama. This incorporation by reference was ap-
proved by the Director of the Federal Register on
June 25, 1984.
(1) Alabama Water Pollution Control Act, Code
of Alabama 1975, sections 22-22-1 through 22-
22-14 (1980 and Supp. 1983);
(2) Regulations, Policies and Pro-
cedures of the Alabama Water Improvement Com-
mission, Title I (Regulations) (Rev. December
1980), as amended May 17, 1982, to add Chapter
9, Underground Injection Control Regulations (ef-
fective June 10, 1982), as amended April 6, 1983
(effective May 11, 1983).
(b) The Memorandum of Agreement between
EPA Region IV and the Alabama Department of
Environment Management, signed by the EPA Re-
gional Administrator on May 24, 1983.
(c) Statement of legal authority. (1) "Water Pol-
lution—Public Health—State has Authority to
Carry Out Underground Injection Control Program
Described in Federal Safe Drinking Water Act—
Opinion by Legal Counsel for the Water Improve-
ment Commission," June 25, 1982;
(2) Letter from Attorney, Alabama Water Im-
provement Commission, to Regional Adminis-
trator, EPA Region IV, "Re: AWIC Response to
Phillip Tale's (U.S. EPA, Washington) Comments
on AWIC's Final Application for Class I, III, IV,
and V UIC Program," September 21, 1982;
(3) Letter from Alabama Chief Assistant Attor-
ney General to Regional Counsel, EPA Region IV,
"Re: Status of Independent Legal Counsel in Ala-
bama Water Improvement Commission's Under-
ground Injection Control Program," September 14,
1982.
(d) The Program Description and any other ma-
terials submitted as part of the application or as
supplements thereto.
[49 FR 20197, May 11, 1984, as amended at 53 FR
43086, Oct. 25, 1988]
§147.60 EPA-administered program—
Indian lands.
(a) Contents. The UIC program for all classes of
wells on Indian lands in Alabama is administered
by EPA. This program consists of the UIC pro-
gram requirements of 40 CFR parts 124, 144, 146,
148 and any additional requirements set forth in
the remainder of this subpart. Injection well own-
ers and operators, and EPA shall comply with
these requirements.
(b) Effective date. The effective date of the UIC
program for Indian lands in Alabama is November
25, 1988.
[53 FR 43086, Oct. 25, 1988, as amended at 56 FR 9411,
Mar. 6, 1991]
Subpart C—Alaska
§147.100 State-administered pro-
gram—Class II wells.
The UIC program for Class II wells in the State
of Alaska, other than those on Indian lands, is the
program administered by the Alaska Oil and Gas
Conservation Commission approved by EPA pur-
suant to section 1425 of the SDWA. Notice of this
approval was published in the FEDERAL REGISTER
[May 6, 1986]; the effective date of this program
is June 19, 1986. This program consists of the fol-
lowing elements, as submitted to EPA in the
State's program application.
(a) Incorporation by reference. The require-
ments set forth in the State statutes and regulations
cited in this paragraph are hereby incorporated by
reference and made a part of the applicable UIC
program under the SDWA for the State of Alaska.
This incorporation by reference was approved by
the Director of the FEDERAL REGISTER effective
June 19, 1986.
(1) Alaska Statutes, Alaska Oil and Gas Con-
servation Act, Title 31, §§31.05.005 through
31.30.010 (1979 and Cum. Supp. 1984);
(2) Alaska Statutes, Administrative Procedures
Act, Title 44, §§44.62.010 through 44.62.650
(1984);
(3) Alaska Administrative Code, Alaska Oil and
Gas Conservation Commission, 20 AAC 25.005
through 20 AAC 25.570 (Supp. 1986).
(b) Memorandum of Agreement. The Memoran-
dum of Agreement between EPA Region 10, and
the Alaska Oil and Gas Conservation Commission,
signed by the EPA Regional Administrator on Jan-
uary 29, 1986, as amended on June 21, 1988.
(c) Statement of Legal Authority. Statement
from the Attorney General of the State of Alaska,
signed by the Assistant Attorney General on De-
cember 10, 1985.
(d) The Program Description and any other ma-
terials submitted as part of the original application
or as supplements thereto.
[51 FR 16684, May 6, 1986, as amended at 56 FR 9411,
Mar. 6, 1991]
§147.101 EPA-administered program.
(a) Contents. The UIC program in the State of
Alaska for Class I, III, IV, and V wells, and for
all classes of wells on Indian lands, is adminis-
-------
§147.104
tered by EPA. This program consists of the UIC
program requirements of 40 CFR parts 124, 144,
146, 148, and any additional requirements set forth
in the remainder of this subpart. Injection well
owners and operators, and EPA shall comply with
these requirements.
(b) Effective dates. The effective date of the
UIC program for all non-Class II wells in Alaska
and for all wells on Indian lands, is June 25, 1984.
[52 FR 17680, May 11, 1987, as amended at 56 FR 9412,
Mar. 6, 1991]
§ 147.102 Aquifer exemptions.
(a) This section identifies any aquifers or their
portions exempted in accordance with §§ 144.7(b)
and 146.4 of this chapter at the time of program
promulgation. EPA may in the future exempt other
aquifers or portions, according to applicable proce-
dures, without codifying such exemptions in this
section. An updated list of exemptions will be
maintained in the Regional office.
(b) The following aquifers are exempted in ac-
cordance with the provisions of §§ 144.7(b) and
146.4 of this chapter for Class II injection activi-
ties only:
(1) The portions of aquifers in the Kenai Penin-
sula, greater than the indicated depths below the
ground surface, and described by a Vi mile area
beyond and lying directly below the following oil
and gas producing fields:
(i) Swanson River Field—1700 feet.
(ii) Beaver Creek Field—1650 feet.
(iii) Kenai Gas Field—1300 feet.
(2) The portion of aquifers beneath Cook Inlet
described by a Vi mile area beyond and lying di-
rectly below the following oil and gas producing
fields:
(i) Granite Point.
(ii) McArthur River Field.
(iii) Middle Ground Shoal Field.
(iv) Trading Bay Field.
(3) The portions of aquifers on the North Slope
described by a 1A mile area beyond and lying di-
rectly below the Kuparuk River Unit oil and gas
producing field.
§147.103 Existing Class I, II (except
enhanced recovery and hydro-
carbon storage) and III wells au-
thorized by rule.
Maximum injection pressure. The owner or op-
erator shall limit injection pressure to the lesser of:
(a) A value which will not exceed the operating
requirements of § 144.28(f)(3) (i) or (ii) as applica-
ble; or
(b) A value for well head pressure calculated by
using the following formula:
Pm=(0.733-0.433 Sg)d
where
Pm=injection pressure at the well head in pounds per
square inch
Sg=specific gravity of inject fluid (unitless)
d=injection depth in feet.
§147.104 Existing Class II enhanced
recovery and hydrocarbon storage
wells authorized by rule.
(a) Maximum injection pressure. (1) To meet
the operating requirements of § 144.28(f)(3)(ii) (A)
and (B) of this chapter, the owner or operator:
(i) Shall use an injection pressure no greater
than the pressure established by the Regional Ad-
ministrator for the field or formation in which the
well is located. The Regional Administrator shall
establish maximum injection pressures after notice,
opportunity for comment, and opportunity for a
public hearing, according to the provisions of part
124, subpart A of this chapter, and will inform
owners and operators in writing of the applicable
maximum pressure; or
(ii) May inject at pressures greater than those
specified in paragraph (a)(l)(i) of this section for
the field or formation in which he is operating
provided he submits a request in writing to the
Regional Administrator, and demonstrates to the
satisfaction of the Regional Administrator that
such injection pressure will not violate the require-
ment of § 144.28(f)(3)(ii) (A) and (B). The Re-
gional Administrator may grant such a request
after notice, opportunity for comment, and oppor-
tunity for a public hearing, according to the provi-
sions of part 124, subpart A of this chapter.
(2) Prior to such time as the Regional Adminis-
trator establishes rules for maximum injection
pressure based on data provided pursuant to para-
graph (a)(2)(ii) of this section the owner or opera-
tor shall:
(i) Limit injection pressure to a value which
will not exceed the operating requirements of
§ 144.28(f)(3)(ii); and
(ii) Submit data acceptable to the Regional Ad-
ministrator which defines the fracture pressure of
the formation in which injection is taking place. A
single test may be submitted on behalf of two or
more operators conducting operations in the same
formation, if the Regional Administrator approves
such submission. The data shall be submitted to
the Regional Administrator within 1 year of the
effective date of this program.
(b) Casing and cementing. Where the Regional
Administrator determines that the owner or opera-
tor of an existing enhanced recovery or hydro-
carbon storage well may not be in compliance
with the requirements of §§ 144.28(e) and 146.22,
the owner or operator shall comply with para-
graphs (b) (1) through (4) of this section, when re-
quired by the Regional Administrator:
(1) Protect USDWs by:
-------
§147.151
(i) Cementing surface casing by recirculating
the cement to the surface from a point 50 feet
below the lowermost USDW; or
(ii) Isolating all USDWs by placing cement be-
tween the outermost casing and the well bore; and
(2) Isolate any injection zones by placing suffi-
cient cement to fill the calculated space between
the casing and the well bore to a point 250 feet
above the injection zone; and
(3) Use cement:
(i) Of sufficient quantity and quality to with-
stand the maximum operating pressure;
(ii) Which is resistant to deterioration from for-
mation and injection fluids; and
(iii) In a quantity no less than 120% of the cal-
culated volume necessary to cement off a zone.
(4) The Regional Administrator may specify
other requirements in addition to or in lieu of the
requirements set forth in paragraphs (b) (1)
through (3) as needed to protect USDWs.
Subpart D—Arizona
§ 147.150 State-administered
[Reserved]
program.
§147.151 EPA-administered program.
(a) Contents. The UIC program that applies to
all injection activities in Arizona, including those
on Indian lands, is administered by EPA. The UIC
program for Navajo Indian lands consists of the
requirements contained in subpart HHH of this
part. The program for all injection activity except
that on Navajo Indian lands consists of the UIC
program requirements of 40 CFR parts 124, 144,
146, 148, and any additional requirements set forth
in the remainder of this subpart. Injection well
owners and operators, and EPA shall comply with
these requirements.
(b) Effective dates. The effective date for the
UIC program in Arizona, except for the lands of
the Navajo Indians, is June 25, 1984. The effective
date for the UIC program on the lands of the Nav-
ajo is November 25, 1988.
[53 FR 43086, Oct. 25, 1988, as amended at 56 FR 9412,
Mar. 6, 1991]
§147.152 Aquifer
served]
exemptions. [Re-
Subpart E—Arkansas
§147.200 State-administered pro-
gram—Class I, III, IV, and V wells.
The UIC program for Class I, III, IV and V
wells in the State of Arkansas, except those wells
on Indian lands, is the program administered by
the Arkansas Department of Pollution Control and
Ecology approved by EPA pursuant to section
1422 of the SDWA. Notice of this approval was
published in the FEDERAL REGISTER on July 6,
1982 (47 FR 29236); the effective date of this pro-
gram is July 6, 1982. This program consists of the
following elements, as submitted to EPA in the
State's program application.
(a) Incorporation by reference. The
requirements set forth in the State statutes and reg-
ulations cited in this paragraph are hereby incor-
porated by reference and made a part of the appli-
cable UIC program under the SDWA for the State
of Arkansas. This incorporation by reference was
approved by the Director of the Federal Register
on June 25, 1984.
(1) Arkansas Water and Air Pollution Control
Act, Act 472 of 1949 as amended, Arkansas Stat-
utes Annotated sections 82-1901 through 82-1943
(1976);
(2) Act 105 of 1939, Arkansas Statutes Anno-
tated sections 53-101 through 53-130 (1971 and
Supp. 1981); Act 937 of 1979, Arkansas Statutes
Annotated sections 53-1301 through 53-1320
(Supp. 1981); Act 523 of 1981;
(3) Arkansas Underground Injection Control
Code, Department of Pollution Control and Ecol-
ogy, promulgated January 22, 1982;
(4) General Rule and Regulations, Arkansas Oil
and Gas Commission (Order No. 2-39, revised
July 1972);
(5) Arkansas Hazardous Waste Management
Code, Department of Pollution Control and Ecol-
ogy, promulgated August 21, 1981.
(b) The Memorandum of Agreement and Ad-
dendum No. 1 to the Memorandum of Agreement,
between EPA Region VI and the Arkansas Depart-
ment of Pollution Control and Ecology and the
Arkansas Oil and Gas Commission, signed by the
EPA Regional Administrator on May 25, 1982.
(c) Statement of legal authority. (1) Letter from
Chief Attorney, Arkansas Department of Pollution
Control and Ecology, to Acting Regional Adminis-
trator, EPA Region VI, "Re: Legal Authority of
the Department of Pollution Control and Ecology
of the State of Arkansas to Administer an Under-
ground Injection Control Program," July 29, 1981;
(2) Letter from Chief Attorney, Arkansas De-
partment of Pollution Control and Ecology, to Act-
ing Regional Counsel, EPA Region VI, "Re: Ad-
dendum to Legal Statement—Underground Injec-
tion Control Program," October 13, 1981;
(3) Letter from General Counsel, Arkansas Oil
and Gas Commission, to Acting Regional Counsel,
EPA Region VI, "Re: Supplemental Addendum to
Legal Statement—Underground Injection Control
Program," October 20, 1981;
(4) Letter from Chief Attorney, Arkansas De-
partment of Pollution Control and Ecology, to At-
torney, Office of Regional Counsel, EPA Region
-------
§147.253
VI (re: status as independent legal counsel), De-
cember 31, 1981;
(5) Letter from General Counsel, Arkansas Oil
and Gas Commission, to Acting Regional Counsel,
EPA Region VI, "Re: Supplemental Addendum to
Legal Statement—Underground Injection Control
Program," January 13, 1982;
(6) Letter from Chief Counsel, Arkansas Depart-
ment of Pollution Control and Ecology, to Acting
Regional Counsel, EPA Region VI, "Re: Adden-
dum to Legal Statement—Underground Injection
Control Program," February 15, 1982;
(7) Letter from Chief Counsel, Arkansas Depart-
ment of Pollution Control and Ecology, to Acting
Regional Counsel, EPA Region VI, "Re: Adden-
dum to Legal Statement—Underground Injection
Control Program," May 13, 1982.
(d) The Program Description and any other ma-
terials submitted as part of the application or as
supplements thereto.
[49 FR 20197, May 11, 1984, as amended at 53 FR
43086, Oct. 25, 1988]
§147.201 State-administered pro-
gram—Class II wells. [Reserved]
§147.205 EPA-administered program—
Indian lands.
(a) Contents. The UIC program for all classes of
wells on Indian lands in Arkansas is administered
by EPA. This program consists of the UIC pro-
gram requirements of 40 CFR parts 124, 144, 146,
148 and any additional requirements set forth in
this subpart. Injection well owners and operators,
and EPA shall comply with these requirements.
(b) Effective date. The effective date of the UIC
program for Indian lands in Arkansas is November
25, 1988.
[53 FR 43086, Oct. 25, 1988, as amended at 56 FR 9412,
Mar. 6, 1991]
Subpart F—California
§147.250 State-administered pro-
gram—Class II wells.
The UIC program for Class II wells in the State
of California, except those on Indian lands, is the
program administered by the California Division
of Oil and Gas, approved by EPA pursuant to
SDWA section 1425.
(a) Incorporation by reference. The require-
ments set forth in the State statutes and regulations
cited in this paragraph are hereby incorporated by
reference and made a part of the applicable UIC
program under the SDWA for the State of Califor-
nia. This incorporation by reference was approved
by the Director of the Federal Register on June 25,
1984.
(1) California Laws for Conservation of Petro-
leum and Gas, California Public Resources Code
Div. 3, Chapt. 1, §§3000-3359 (1989);
(2) California Administrative Code, title 14,
§§ 1710 to 1724.10 (May 28, 1988).
(b) The Memorandum of Agreement between
EPA Region IX and the California Division of Oil
and Gas, signed by the EPA Regional Adminis-
trator on September 29, 1982.
(c) Statement of legal authority. (1) Letter from
California Deputy Attorney General to the Admin-
istrator of EPA, "Re: Legal Authority of Califor-
nia Division of Oil and Gas to Carry Out Class II
Injection Well Program," April 1, 1981;
(2) Letter from California Deputy Attorney
General to Chief of California Branch, EPA Re-
gion IX, "Re: California Application for Primacy,
Class II UIC Program," December 3, 1982.
(d) The Program Description and any other ma-
terials submitted as part of the application or as
supplements thereto.
[49 FR 20197, May 11, 1984, as amended at 52 FR
17681, May 11, 1987; 56 FR 9412, Mar. 6, 1991]
§147.251 EPA-administered program—
Class I, III, IV and V wells and In
dian lands.
(a) Contents. The UIC program in the State of
California for Class I, III, IV and V wells, and for
all classes of wells on Indian lands, is adminis-
tered by EPA. The program consists of the UIC
program requirements of 40 CFR parts 124, 144,
146, 148, and any additional requirements set forth
in the remainder of this subpart. Injection well
owners and operators, and EPA shall comply with
these requirements.
(b) Effective dates. The effective date for the
UIC program for all lands in California, including
Indian lands, is June 25, 1984.
[52 FR 17681, May 11, 1987, as amended at 56 FR 9412,
Mar. 6, 1991]
§147.252 Aquifer
served]
exemptions. [Re-
§147.253 Existing Class I, II (except
enhanced recovery and hydro-
carbon storage) and III wells au-
thorized by rule.
Maximum injection pressure. The owner or op-
erator shall limit injection pressure to the lesser of:
(a) A value which will not exceed the operating
requirements of § 144.28(f)(3) (i) or (ii) as applica-
ble; or
(b) A value for well head pressure calculated by
using the following formula:
Pm=(0.733-0.433 Sg)d
where
-------
§147.300
Pm=injection pressure at the well head in pounds per
square inch
Sg=specific gravity of inject fluid (unitless)
d=injection depth in feet.
Subpart G—Colorado
§147.300 State-administered pro-
gram—Class II wells.
The UIC program for Class II wells in the State
of Colorado, except those wells on Indian Lands,
is the program administered by the Colorado Oil
and Gas Commission approved by EPA pursuant
to section 1425 of the SOW A. Notice of this ap-
proval was published in the FR on April 2, 1984
(49 FR 13040); the effective date of this program
is April 2, 1984. This program consists of the fol-
lowing elements, as submitted to EPA in the
State's program application:
(a) Incorporation by reference. The require-
ments set forth in the State statutes and regulations
cited in this paragraph are hereby incorporated by
reference and made a part of the applicable UIC
program under the SDWA for the State of Colo-
rado. This incorporation by reference was ap-
proved by the Director of the OFR in accordance
with 5 U.S.C. 552(a) and 1 CFR part 51. Copies
may be obtained at the State of Colorado Oil and
Gas Conservation Commission, Department of
Natural Resources, Suite 380 Logan Tower Build-
ing, 1580 Logan Street, Denver, Colorado, 80203.
Copies may be inspected at the Environmental
Protection Agency, Region VIII, 999 18th Street,
Suite 500, Denver, Colorado, 80202-2405, or at
the Office of the Federal Register, 800 North Cap-
itol Street NW., suite 700, Washington, DC.
(1) Colorado Revised Statutes, 1989 replace-
ment volume, Section 34-60-101 through 34—60-
123;
(2) Colorado Revised Statutes, 1989 replace-
ment volume, Section 25-8-101 through 25-8-
612;
(3) Rules and Regulations, Rules of Practice and
Procedure, and Oil and Gas Conservation Act (As
Amended) Department of Natural Resources, Oil
and Gas Conservation Commission of the State of
Colorado (revised July 1989);
(4) Oil and Gas Conservation Commission Re-
vised Rules and Regulations in the 300, 400, 500,
and 600 series, effective March 20, 1989.
(b) Memorandum of agreement. The Memoran-
dum of Agreement between EPA Region VIII and
the Colorado Oil and Gas Conservation Commis-
sion, signed by the EPA Regional Administrator
on March 3, 1984 and amended on August 30,
1989.
(c) Statement of legal authority. (1) Letter from
Colorado Assistant Attorney General to the Acting
Regional Counsel, EPA Region VIII, "Re: Class
II Well Underground Injection Control Program of
Colorado Oil and Gas Conservation Commission",
March 15, 1983;
(2) Letter from Colorado Assistant Attorney
General to the Acting Regional Counsel, EPA Re-
gion VIII, "Re: Class II Well Injection Control
Program of Colorado Oil and Gas Conservation
Commission", April 29, 1983;
(3) Letter from Colorado Assistant Attorney
General to the Acting Regional Counsel, EPA Re-
gion VIII, "Re: Class II Underground Injection
Control Program of Colorado Oil and Gas Con-
servation Commission, interpretation of C.R.S.
1973, 34-60-110", July 11, 1983;
(4) Letter from Colorado Assistant Attorney
General to the Acting Regional Counsel, EPA Re-
gion VIII, "Re: Class II Well Underground Injec-
tion Control Program of Colorado Oil and Gas
Conservation Commission", February 17, 1984;
(5) Memorandum from Colorado Assistant At-
torney General to the Acting Regional Counsel,
EPA Region VIII, "Re: Authority to set and en-
force maximum pressure for injecting fluids into
Class II wells with existing permits", March 7,
1984.
(d) Program description. The Program Descrip-
tion and any other materials submitted as part of
the application or as supplements thereto:
(1) Application and accompanying materials for
approval of Colorado's UIC program for Class II
wells submitted by the Director of the Colorado
Oil and Gas Conservation Commission to the Re-
gional Administrator, May 3, 1983;
(2) Supplemental amendment to Colorado's ap-
plication for primacy for the UIC program for
Class II wells describing the process through
which the State will ensure enforceable limits for
maximum injection pressure, describing the Com-
mission's plan of administration for Class II wells,
and describing Mechanical Integrity Test proce-
dures for Class II wells, March 7, 1984;
(3) Official correspondence concerning various
program issues between the Colorado Oil and Gas
Conservation Commission and EPA Region VIII,
for the period from March 7, 1984 to May 8,
1989.
[56 FR9412, Mar. 6, 1991]
§147.301 EPA-administered program-
Class I, III, IV, V wells and Indian
lands.
(a) Contents. The UIC program for Class I, III,
IV and V wells on all lands in Colorado, including
Indian lands, and for Class II wells on Indian
lands, is administered by EPA. The program for
all EPA-administered wells in Colorado other than
Class II wells on the lands of the Ute Mountain
Ute consists of the UIC program requirements of
40 CFR parts 124, 144, 146, 148, and any addi-
10
-------
§147.304
tional requirements set forth in the remainder of
this subpart. Injection well owners and operators,
and EPA shall comply with these requirements.
(b) Effective dates. The effective date for the
UIC program on all lands in Colorado, including
Indian lands, except for Class II wells on lands of
the Ute Mountain Ute, is June 25, 1984.
[52 FR 17681, May 11, 1987, as amended at 56 FR 9413,
Mar. 6, 1991]
§ 147.302 Aquifer exemptions.
(a) This section identifies any aquifers of their
portions exempted in accordance with §§ 144.7(b)
and 146.4 of this chapter at the time of program
promulgation. EPA may in the future exempt other
aquifers or portions according to applicable proce-
dures without codifying such exemptions in this
section. An updated list of exemptions will be
maintained in the Regional office.
(b) For all aquifers into which existing Class II
wells are injecting, those portions within a :/4 mile
radius of the well are exempted for the purpose of
Class II injection activities only.
§147.303 Existing Class I, II (except
enhanced recovery and hydro-
carbon storage) and III wells au-
thorized by rule.
Maximum injection pressure. The owner or op-
erator shall limit injection pressure to the lesser of:
(a) A value which will not exceed the operating
requirements of § 144.28(f)(3) (i) or (ii) as applica-
ble; or
(b) A value for wellhead pressure calculated by
using the following formula;
Pm=(0.733-0.433 Sg)d
where:
Pm=injection pressure at the wellhead in pounds per
square inch
Sg=specific gravity of injected fluid (unitless)
d=injection depth in feet.
§147.304 Existing Class II enhanced
recovery and hydrocarbon storage
wells authorized by rule.
(a) Maximum injection pressure. (1) To meet
the operating requirements of § 144.28(f)(3)(ii) (A)
and (B) of this chapter, the owner or operator:
(i) Shall use an injection pressure no greater
than the pressure established by the Regional Ad-
ministrator for the field or formation in which the
well is located. The Regional Administrator shall
establish such a maximum pressure after notice,
opportunity for comment, and opportunity for a
public hearing, according to the provisions of part
124, subpart A of this chapter, and will inform
owners and operators in writing of the applicable
maximum pressure; or
(ii) May inject at pressures greater than those
specified in paragraph (a)(l)(i) of this section for
the field or formation in which he is operating
provided he submits a request in writing to the
Regional Administrator and demonstrates to the
satisfaction of the Regional Administrator that
such injection pressure will not violate the require-
ments of § 144.28(f)(3)(ii) (A) and (B). The Re-
gional Administrator may grant such a request
after notice, opportunity for comment, and oppor-
tunity for a public hearing, according to the provi-
sions of part 124, subpart A of this chapter.
(2) Prior to such time as the Regional Adminis-
trator establishes rules for maximum injection
pressures based on data provided pursuant to para-
graph (a)(2)(ii) of this section the owner or opera-
tor shall:
(i) Limit injection pressure to a value which
will not exceed the operating requirements of
§ 144.28(f)(3)(ii); and
(ii) Submit data acceptable to the Regional Ad-
ministrator which defines the fracture pressure of
the formation in which injection is taking place. A
single test may be submitted on behalf of two or
more operators conducting operations in the same
formation, if the Regional Administrator approves
such submission. The data shall be submitted to
the Regional Administrator within one year of the
effective date of this program.
(b) Casing and cementing. Where the Regional
Administrator determines that the owner or opera-
tor of an existing enhanced recovery or hydro-
carbon storage well may not be in compliance
with the requirements of §§ 144.28(e) and 146.22,
the owner or operator shall comply with para-
graphs (b) (1) through (4) of this section, when re-
quired by the Regional Administrator:
(1) Protect USDWs by:
(i) Cementing surface casing by recirculating
the cement to the surface from a point 50 feet
below the lowermost USDW; or
(ii) Isolating all USDWs by placing cement be-
tween the outermost casing and the well bore; and
(2) Isolate any injection zones by placing suffi-
cient cement to fill the calculated space between
the casing and the well bore to a point 250 feet
above the injection zone; and
(3) Use cement:
(i) Of sufficient quantity and quality to with-
stand the maximum operating pressure;
(ii) Which is resistent to deterioration from for-
mation and injection fluids; and
(iii) In quantity no less than 120% of the cal-
culated volume necessary to cement off a zone.
(4) The Regional Administrator may specify
other requirements in addition to or in lieu of the
requirements set forth in paragraphs (b) (1)
through (3) as needed to protect USDWs.
11
-------
§147.305
§ 147.305 Requirements for all wells.
(a) The owner or operator converting an exist-
ing well to an injection well shall check the condi-
tion of the casing with one of the following log-
ging tools:
(1) A Pipe analysis log; or
(2) A Caliper log.
(b) The owner or operator of a new injection
well cased with plastic (PVC, ABS, and others)
casings shall:
(1) Not construct a well deeper than 500 feet;
(2) Use cement and additives compatible with
such casing material;
(3) Cement the annular space above the injec-
tion interval from the bottom of the blank casing
to the surface.
(c) The owner or operator of a newly drilled
well shall install centralizers as directed by the
Regional Administrator.
(d) The owner or operator shall as required by
the Regional Administrator:
(1) Protect USDWs by:
(i) Setting surface casing 50 feet below the base
of the lowermost USDW;
(ii) Cementing surface casing by recirculating
the cement to the surface from a point 50 feet
below the lowermost USDW; or
(iii) Isolating all USDWs by placing cement be-
tween the outermost casing and the well bore; and
(2) Isolate any injection zones by placing suffi-
cient cement to fill the calculated space between
the casing and the well bore to a point 250 feet
above the injection zone; and
(3) Use cement:
(i) Of sufficient quantity and quality to with-
stand the maximum operating pressure;
(ii) Which is resistant to deterioration from for-
mation and injection fluids; and
(iii) In a quantity no less than 120% of the cal-
culated volume necessary to cement off a zone.
(4) The Regional Administrator may approve al-
ternate casing and cementing practices provided
that the owner or operator demonstrates that such
practices will adequately protect USDWs.
(e) Area of review. Notwithstanding the alter-
natives presented in § 146.6 of this chapter, the
area of review shall be a fixed radius as described
in § 146.6(b) of this chapter.
(f) The applicant must give separate notice of
intent to apply for a permit to each owner or ten-
ant of the land within one-quarter mile of the site.
The addresses of those to whom notice is given,
and a description of how notice is given, shall be
submitted with the permit application. The notice
shall include:
(1) Name and address of applicant;
(2) A brief description of the planned injection
activities, including well location, name and depth
of the injection zone, maximum injection pressure
and volume, and fluid to be injected;
(3) EPA contact person; and
(4) A statement that opportunity to comment
will be announced after EPA prepares a draft per-
mit. This requirement may be waived by the Re-
gional Administrator when he determines that indi-
vidual notice to all land owners and tenants would
be impractical.
Subpart H—Connecticut
§147.350 State-administered program.
The UIC program for all classes of wells in the
State of Connecticut, except those wells on Indian
lands, is the program administered by the Connect-
icut Department of Environmental Protection ap-
proved by EPA pursuant to section 1422 of the
SDWA. Notice of this approval was published in
the FR on March 26, 1984 (49 FR 11179); the ef-
fective date of this program is March 26, 1984.
This program consists of the following elements,
as submitted to EPA in the State's program appli-
cation:
(a) Incorporation by reference. The require-
ments set forth in the State statutes and regulations
cited in this paragraph are hereby incorporated by
reference and made part of the applicable UIC
program under the SDWA for the State of Con-
necticut. This incorporation by reference was ap-
proved by the Director of the OFR in accordance
with 5 U.S.C. 552(a) and CFR part 51. Copies
may be obtained at the State of Connecticut, De-
partment of Environmental Protection, State Office
Building, 165 Capitol Avenue, Hartford, Connecti-
cut, 06106. Copies may be inspected at the Envi-
ronmental Protection Agency, Region I, John F.
Kennedy Federal Building, room 2203, Boston,
Massachusetts, 02203, or at the Office of the Fed-
eral Register, 800 North Capitol Street NW., suite
700, Washington, DC.
(1) Connecticut General Statutes Annotated, title
22a (Environmental Protection), chapter 439, sec-
tions 22a-l through 22a-27 (1985 and Cumm.
Supp. 1990);
(2) Connecticut General Statutes Annotated,
Title 22a (Environmental Protection), Chapter
446K (1985 and Cumm. Supp. 1990).
(b) Memorandum of Agreement. The Memoran-
dum of Agreement between EPA Region I and the
Connecticut Department of Environmental Protec-
tion, signed by the EPA Regional Administrator
on August 9, 1983.
(c) Statement of legal authority. (1) Statement
from the Attorney General of the State of Con-
necticut, signed by the Attorney General on May
8, 1981;
12
-------
§147.451
(2) Addendum to the Statement from the Attor-
ney General of the State of Connecticut, signed by
the Attorney General on May 10, 1983.
(d) Program Description. The Program Descrip-
tion and any other materials submitted as part of
the application or as supplements thereto.
[56 FR9413, Mar. 6, 1991]
§§147.351—147.352 [Reserved]
§147.353 EPA-administered program-
Indian lands.
(a) Contents. The UIC program for all classes of
wells on Indian lands in Connecticut is adminis-
tered by EPA. This program consists of the UIC
program requirements of 40 CFR parts 124, 144,
146, 148, and any additional requirements set forth
in the remainder of this subpart. Injection well
owners and operators, and EPA shall comply with
these requirements.
(b) Effective date. The effective date of the UIC
program for Indian lands in Connecticut is No-
vember 25, 1988.
[53 FR 43086, Oct. 25, 1988, as amended at 56 FR 9413,
Mar. 6, 1991]
§§147.354—147.359 [Reserved]
Subpart I—Delaware
§147.400 State-administered program.
The UIC program for all classes of wells in the
State of Delaware, except those wells on Indian
lands, is the program administered by the Dela-
ware Department of Natural Resources and Envi-
ronmental Control approved by EPA pursuant to
section 1422 of the SOW A. Notice of this ap-
proval was published in the FR on April 5, 1984
(49 FR 13525); the effective date of this program
is May 7, 1984. This program consists of the fol-
lowing elements, as submitted to EPA in the
State's program application:
(a) Incorporation by reference. The require-
ments set forth in the State statutes and regulations
cited in this paragraph are hereby incorporated by
reference and made a part of the applicable UIC
program under the SDWA for the State of Dela-
ware. This incorporation by reference was ap-
proved by the Director of the OFR in accordance
with 5 U.S.C. 552(a) and 1 CFR part 51. Copies
may be obtained at the Delaware Department of
Natural Resources and Environmental Control, 89
Kings Highway, P.O. Box 1401, Dover, Delaware,
19903. Copies may be inspected at the Environ-
mental Protection Agency, Region III, 841 Chest-
nut Street, Philadelphia, Pennsylvania, 19107, or at
the Office of the Federal Register, 800 North Cap-
itol Street NW., suite 700, Washington, DC.
(1) Delaware Environmental Protection Act,
(Environmental Control) 7 Delaware Code Anno-
tated, Chapter 60, Sections 6001-6060 (Revised
1974 and Cumm. Supp. 1988);
(2) State of Delaware Regulations Governing
Underground Injection Control, parts 122, 124 and
146 (Department of Natural Resources and Envi-
ronmental Control), effective August 15, 1983.
(b) Memorandum of agreement. The Memoran-
dum of Agreement between EPA Region III and
the Delaware Department of Natural Resources
and Environmental Control, signed by the EPA
Regional Administrator on March 28, 1984.
(c) Statement of legal authority. Statement of
the Delaware Attorney General for the Under-
ground Injection Control Program, signed by the
Attorney General on January 26, 1984.
(d) Program Description. The Program Descrip-
tion and any other materials submitted as part of
the application (August 10, 1983), or as supple-
ments thereto (October 14, 1983).
[56 FR9413, Mar. 6, 1991]
§§147.401—147.402 [Reserved]
§147.403 EPA-administered program-
Indian lands.
(a) Contents. The UIC program for all classes of
wells on Indian lands in Delaware is administered
by EPA. This program consists of the UIC pro-
gram requirements of 40 CFR parts 124, 144, 146,
148, and any additional requirements set forth in
the remainder of this subpart. Injection well own-
ers and operators and EPA shall comply with
these requirements.
(b) Effective date. The effective date of the UIC
program for Indian lands in Delaware is Novem-
ber 25, 1988.
[53 FR 43086, Oct. 25, 1988, as amended at 56 FR 9413,
Mar. 6, 1991]
§§147.404—147.449 [Reserved]
Subpart J—District of Columbia
§147.450 State-administered program.
[Reserved]
§147.451 EPA-administered program.
(a) Contents. The UIC program for the District
of Columbia, including any Indian lands in the
District, is administered by EPA. This program
consists of the UIC program requirements of 40
CFR parts 124, 144, 146, 148, and any additional
requirements set forth in the remainder of this sub-
part. Injection well owners and operators, and
EPA shall comply with these requirements.
(b) Effective date. The effective date of the UIC
program for Indian lands in the District of Colum-
13
-------
§147.500
bia is November 25, 1988. The effective date for
the UIC program in the rest of the District is June
25, 1984.
[53 FR 43087, Oct. 25, 1988, as amended at 56 FR 9413,
Mar. 6, 1991]
§147.452 Aquifer exemptions. [Re-
served]
Sub pa it K—Florida
§147.500 State-administered pro-
gram—Class I, III, IV, and V wells.
The UIC program for Class I, III, IV, and V
wells in the State of Florida, except for those on
Indian lands is administered by the Florida Depart-
ment of Environmental Regulations, approved by
EPA pursuant to section 1422 of the SOW A. No-
tice of this approval was published in the FED-
ERAL REGISTER on February 7, 1983 (48 FR
5556); the effective date of this program is March
9, 1983. This program consists of the following
elements, as submitted to EPA in the State's pro-
gram application:
(a) Incorporation by reference. The require-
ments set forth in the State statutes and regulations
cited in this paragraph are hereby incorporated by
reference and made a part of the applicable UIC
program under the SDWA for the State of Florida.
This incorporation by reference was approved by
the Director of the Federal Register on June 25,
1984.
(1) Florida Air and Water Pollution Control Act,
Florida Statutes Annotated sections 403.011
through 403.90 (1973 and Supp. 1983);
(2) Chapter 17-28, Underground Injection Con-
trol, Florida Administrative Code (April 27, 1989).
(b) Other laws. The following statutes and regu-
lations although not incorporated by reference,
also are part of the approved State-administered
program:
(1) Administrative Procedures Act, Florida Stat-
utes Chapter 120;
(2) Florida Administrative Code, Chapter 17-1
(1982) (Administrative Procedures Act);
(3) Florida Administrative Code, Chapter 17-3
(1982) (Water Quality Standards);
(4) Florida Administrative Code, Chapter 17^1
(1982) (Permits);
(5) Florida Administrative Code, Chapter 28-5
(1982) (Decisions Determining Substantial Inter-
ests);
(6) Florida Administrative Code, Chapter 28-6
(1982) (Licensing);
(c) The Memorandum of Agreement between
EPA Region IV and the Florida Department of
Environmental Regulation, signed by the EPA Re-
gional Administrator on March 31, 1983.
(d) Statement of legal authority. (1) "Statement
of Legal Authority for Implementation of Under-
ground Injection Control Program" and accom-
panying certifications, signed by General Counsel
for the Florida Department of Environmental Reg-
ulation, January 14, 1982;
(2) "Addendum to Statement of Legal Author-
ity for Implementation of Underground Injection
Control Program" and accompanying certifi-
cations, signed by Acting General Counsel for the
Florida Department of Environmental Regulation,
September 20, 1982.
(e) The Program Description and any other ma-
terials submitted as part of the original application
or as supplements thereto.
[49 FR 20197, May 11, 1984, as amended at 53 FR
43087, Oct. 25, 1988; 56 FR 9414, Mar. 6, 1991]
§147.501 EPA-administered program-
Class II wells and Indian lands.
(a) Contents. The UIC program for all classes of
wells on Indian lands and for Class II wells on
non-Indian lands in the State of Florida is admin-
istered by EPA. This program consists of the UIC
program requirements of 40 CFR parts 124, 144,
146, 148, and any additional requirements set forth
in the remainder of this subpart. Injection well
owners and operators, and EPA shall comply with
these requirements.
(b) Effective dates. The effective date of the
UIC program for Indian lands in Florida is No-
vember 25, 1988. The effective date for Class II
wells on non-Indian lands is December 30, 1984.
[53 FR 43087, Oct. 25, 1988, as amended at 56 FR 9414,
Mar. 6, 1991]
§147.502 Aquifer exemptions.
served]
[Re-
§147.503 Existing Class II (except en-
hanced recovery and hydrocarbon
storage) wells authorized by rule.
Maximum injection pressure. To meet the oper-
ating requirements of § 144.28(f)(3)(i) of this
chapter, the owner or operator shall use an injec-
tion pressure at the well head no greater than the
pressure calculated using the following formula:
Pm=(0.733-0.433 Sg)d
where
Pm=injection pressure at the well head in pounds per
square inch
Sg=specific gravity of injected fluid (unitless)
d=injection depth in feet.
[49 FR 45306, Nov. 15, 1984]
14
-------
§147.550
§147.504 Existing Class II enhanced
recovery and hydrocarbon storage
wells authorized by rule.
(a) Maximum injection pressure. (1) To meet
the operating requirements of § 144.28(f)(3)(ii) (A)
and (B) of this chapter, the owner or operator:
(i) Shall use an injection pressure no greater
than the pressure established by the Regional Ad-
ministrator for the field or formation in which the
well is located. The Regional Administrator shall
establish such a maximum pressure after notice,
opportunity for comment and opportunity for a
public hearing, according to the provisions of part
124, subpart A of this chapter, and will inform
owners and operators in writing of the applicable
maximum pressure; or
(ii) May inject at pressure greater than those
specified in paragraph (a)(l)(i) of this section for
the field or formation in which he is operating
provided he submits a request in writing to the
Regional Administrator, and demonstrates to the
satisfaction of the Regional Administrator that
such injection pressure will not violate the require-
ment of § 144.28(f)(3)(ii) (A) and (B). The Re-
gional Administrator may grant such a request
after notice, opportunity for comment, and oppor-
tunity for a public hearing, according to the provi-
sions of part 124, subpart A of this chapter.
(2) Prior to such time as the Regional Adminis-
trator establishes rules for maximum injection
pressure based on data provided pursuant to para-
graph (a)(2)(ii) of this section the owner or opera-
tor shall:
(i) Limit injection pressure to a value which
will not exceed the operating requirements of
§ 144.28(f)(3)(ii); and
(ii) Submit data acceptable to the Regional Ad-
ministrator which defines the fracture pressure of
the formation in which injection is taking place. A
single test may be submitted on behalf of two or
more operators conducting operations in the same
formation, if the Regional Administrator approves
such submission. The data shall be submitted to
the Regional Administrator within 1 year of the
effective date of this program.
(b) Casing and cementing. Where the Regional
Administrator determines that the owner or opera-
tor of an existing enhanced recovery or hydro-
carbon storage well may not be in compliance
with the requirements of §§ 144.28(e) and 146.22,
the owner or operator shall, when required by the
Regional Administrator:
(1) Protect USDWs by:
(i) Cementing surface casing by recirculating
the cement to the surface from a point 50 feet
below the lowermost USDW; or
(ii) Isolating all USDWs by placing cement be-
tween the outermost casing and the well bore; and
(2) Isolate any injection zones by placing suffi-
cient cement to fill the calculated space between
the casing and the well bore to a point 250 feet
above the injection zone; and
(3) Use cement:
(i) Of sufficient quantity and quality to with-
stand the maximum operating pressure;
(ii) Which is resistant to deterioration from for-
mation and injection fluids; and
(iii) In a quantity no less than 120% of the cal-
culated volume necessary to cement off a zone.
(4) Comply with other requirements which the
Regional Administrator may specify either in addi-
tion to or in lieu of the requirements set forth in
paragraphs (b)(l) through (3) of this section as
needed to protect USDWs.
(c) Area of review. Notwithstanding the alter-
natives presented in § 146.06 of this chapter, the
area of review shall be a minimum fixed radius as
described in § 146.06(b) of this chapter.
(The information collection requirements contained in
paragraph (a)(2)(ii) were appoved by the Office of Man-
agement and Budget under control number 2040-0042)
[49 FR 45306, Nov. 15, 1984]
Subpart L—Georgia
§147.550 State-administered program.
The UIC program for all classes of wells in the
State of Georgia, except those wells on Indian
lands, is the program administered by the Georgia
Department of Natural Resources, Environmental
Protection Division approved by EPA pursuant to
section 1422 of the SOW A. Notice of this ap-
proval was published in the FEDERAL REGISTER on
April 19, 1984 (49 FR 15553); the effective date
of this program is May 21, 1984. This program
consists of the following elements, as submitted to
EPA in the State's program application:
(a) Incorporation by reference. The require-
ments set forth in the State statutes and regulations
cited in this paragraph are hereby incorporated by
reference and made a part of the applicable UIC
program under the SDWA for the State of Geor-
gia. This incorporation by reference was approved
by the Director of the OFR in accordance with 5
U.S.C. 552(a) and 1 CFR part 51. Copies may be
obtained at the Georgia Department of Natural Re-
sources, Environmental Protection Division, 270
Washington Street, SW., Atlanta, Georgia, 30334.
Copies may be inspected at the Environmental
Protection Agency, Region IV, 345 Courtland
Street, NE., Atlanta, Georgia, 30365, or at the Of-
fice of the Federal Register, 800 North Capitol
Street NW., suite 700, Washington, DC.
(1) Oil and Gas and Deep Drilling Act of 1975,
Official Code of Georgia Annotated (O.C.G.A.)
§§ 12-4-40 through 12^t-53 (1988);
15
-------
§147.553
(2) Ground Water Use Act of 1972, O.C.G.A.
§§ 12-5-90 through 12-5-107 (1988);
(3) Water Well Standards Act of 1985,
O.C.G.A. §§ 12-5-120, through 12-5-138 (1988);
(4) Georgia Administrative Procedure Act,
O.C.G.A. §§50-13-1 through 50-13-22 (Re-
printed from the O.C.G.A. and 1988 Cumm.
Supp.);
(5) Georgia Water Quality Control Act,
O.C.G.A. §§ 12-5-20 through 12-5-53 (1988);
(6) Georgia Hazardous Waste Management Act,
O.C.G.A. §§ 12-8-60 through 12-8-83 (1988);
(7) Georgia Safe Drinking Water Act of 1977,
O.C.G.A. §§ 12-5-170 through 12-5-193 (1988);
(8) Rules of Georgia Department of Natural Re-
sources, Environmental Protection Division, Water
Quality Control, GA. COMP. R. & REGS. Chap-
ter 391-3-6-.13 (Revised July 28, 1988).
(b) Memorandum of Agreement. The Memoran-
dum of Agreement between EPA Region IV and
the State of Georgia, signed March 1, 1984.
(c) Statement of legal authority. (1) Unofficial
Opinion of the Georgia Attorney General, Op.
Atty. Gen. 080-24, June 12, 1980;
(2) Underground Injection Control Program, At-
torney General's Statement, February 4, 1982;
(3) Amended Attorney General's Statement Re-
lating to Authority of the State of Georgia to Im-
plement an Underground Injection Control Pro-
gram, April 22, 1983;
(4) Letter to EPA Office of General Counsel
from Senior Assistant Attorney General "Re: State
UIC Program", July 13, 1983.
(d) Program Description. The Program Descrip-
tion and any other materials submitted as part of
the application or as supplements thereto.
[56 FR 9414, Mar. 6, 1991; 56 FR 14150, Apr. 5, 1991]
§§147.551—147.552 [Reserved]
§147.553 EPA-administered program—
Indian lands.
(a) Contents. The UIC program for all classes of
wells on Indian lands in the State of Georgia is
administered by EPA. This program consists of the
UIC program requirements of 40 CFR parts 124,
144, 146, 148, and any additional requirements set
forth in the remainder of this subpart. Injection
well owners and operators, and EPA shall comply
with these requirements.
(b) Effective date. The effective date of the UIC
program for Indian lands in Georgia is November
25, 1988.
[53 FR 43087, Oct. 25, 1988, as amended at 56 FR 9414,
Mar. 6, 1991]
§§147.554—147.559 [Reserved]
Subpart M—Hawaii
§147.600 State-administered program.
[Reserved]
§147.601 EPA-administered program.
(a) Contents. The UIC program for the State of
Hawaii, including all Indian lands, is administered
by EPA. This program consists of the UIC pro-
gram requirements of 40 CFR parts 124, 144, 146,
148, and any additional requirements set forth in
the remainder of this subpart. Injection well own-
ers and operators, and EPA shall comply with
these requirements.
(b) Effective date. The effective date of the UIC
program for Indian lands in Hawaii is November
25, 1988. The effective date for the UIC program
for all other lands in Hawaii is December 30,
1984.
[53 FR 43087, Oct. 25, 1988, as amended at 56 FR 9414,
Mar. 6, 1991]
Subpart N—Idaho
§147.650 State-administrative pro-
gram—Class I, II, III, IV, and V
wells.
The UIC program for Class I, II, III, IV, and V
wells in the State of Idaho, other than those on In-
dian lands, is the program administered by the
Idaho Department of Water Resources, approved
by EPA pursuant to section 1422 of the SOW A.
Notice of this approval was published in the FED-
ERAL REGISTER on June 7, 1985; the effective date
of this program is July 22, 1985. This program
consists of the following elements, as submitted to
EPA in the State's program application.
(a) Incorporation by reference. The require-
ments set forth in the State statutes and regulations
cited in this paragraph are hereby incorporated by
reference and made a part of the applicable UIC
program under the SDWA for the State of Idaho.
This incorporation by reference was approved by
the Director of the FEDERAL REGISTER effective
July 22, 1985.
(1) Public Writings, Title 9, Chapter 3, Idaho
Code, sections 9-301 through 9-302 (Bobbs-Mer-
rill 1979);
(2) Crimes and Punishments, Title 18, Chapter
1, Idaho Code, sections 18-113 through 18-114
(Bobbs-Merrill 1979 and Supp. 1984);
(3) Department of Health and Welfare, Title 39,
Chapter 1, Idaho Code, Chapter 39-108 (Bobbs-
Merrill 1977);
(4) Drainage-Water Rights and Reclamation,
Title 42, Chapter 2, Idaho Code sections 42-
16
-------
§147.700
237(e); section 42-238 (Bobbs-Merrill 1977 and
Supp. 1984);
(5) Department of Water Resources-Water Re-
sources Board, Title 42, Chapter 17, Idaho Code,
sections 42-1701, 42-1703, 42-1735 (Bobbs-Mer-
rill 1977, section 42-1701A (Supp. 1984);
(6) Director of Department of Water Resources,
Title 42, Chapter 18, Idaho Code, sections 42-
1801 through 42-1805 (Bobbs-Merrill 1977);
(7) Waste Disposal and Injection Wells, Title
42, Chapter 39, Idaho Code, sections 42-3901
through 42-3914 (Bobbs-Merrill 1977), sections
42-3915 through 42-3919 (Supp. 1984);
(8) Idaho Trade Secrets Act, Title 48, Chapter
8, Idaho Code, sections 48-801 through 48-807
(Bobbs-Merrill 1977 and Supp. 1984);
(9) Administrative Procedure, Title 67, Chapter
52, Idaho Code, sections
67-5201 through 67-5218 (Bobbs-Merrill 1980
and Supp. 1984);
(10) Idaho Radiation Control Regulations (IRCR
section 1-9002.70; sections 1-9100 through 1-
9110, Department of Health and Welfare (May
1981);
(11) Rules and Regulations: Construction and
Use of Injection Wells, Idaho Department of
Water Resources, Rules 1 through 14 (August
1984);
(12) Rules and Regulations: Practice and Proce-
dures, Idaho Department of Water Resources,
Rules 1 through 14 (October 1983).
(b) The Memorandum of Agreement between
EPA and Region X and the Idaho Department of
Water Resources signed by the EPA Regional Ad-
ministrator on February 11, 1985.
(c) Statement of legal authority. (1) The Idaho
Attorney General's Statement for the Underground
Injection Control Program, October 31, 1984.
(2) Letter from David J. Barber, Deputy Attor-
ney General, Idaho Department of Water Re-
sources to Harold Scott, EPA, Region 10, revising
the Attorney General's Statement, February 14,
1985.
(d) The Program Description and any other ma-
terials submitted as part of the application or as
supplements thereto.
[50 FR 23957, June 7, 1985]
§147.651 EPA-administered program-
Indian lands.
(a) Contents. The UIC program for all classes of
wells on Indian lands in the State of Idaho is ad-
ministered by EPA. This program consists of the
UIC program requirements of 40 CFR parts 124,
144, 146, 148, and any additional requirements set
forth in the remainder of this subpart. Injection
well owners and operators, and EPA shall comply
with these requirements.
(b) Effective dates. The effective date of the
UIC program for Indian lands in Idaho is June 11,
1984.
[52 FR 17681, May 11, 1987, as amended at 56 FR 9414,
Mar. 6, 1991]
§147.652 Aquifer exemptions. [Re-
served]
Subpart O—Illinois
§147.700 State-administered pro-
gram—Class I, III, IV, and V wells.
The UIC program for Class I, III, IV and V
wells in the State of Illinois, except those on In-
dian lands, is the program administered by the Illi-
nois Environmental Protection Agency, approved
by EPA pursuant to section 1422 of the SOW A.
Notice of the approval was published in the FED-
ERAL REGISTER on February 1, 1984 (49 FR
3991); the effective date of this program is March
3, 1984. This program consists of the following
elements, as submitted to EPA in the State's pro-
gram application:
(a) Incorporation by reference. The require-
ments set forth in the state statutes and regulations
cited in this paragraph are hereby incorporated by
reference and made a part of the applicable UIC
program under the SDWA for the State of Illinois.
This incorporation by reference was approved by
the Director of the Federal Register on June 25,
1984.
(1) Illinois Environmental Protection Act, Illi-
nois ch. lllVi, sections 1001 to 1051 (Smith-Hurd
1977 Revised Statutes and Supp. 1983), as amend-
ed by Public Act No. 83-431, 1983 Illinois Legis-
lative Service, pages 2910 to 2916 (West);
(2) Illinois Pollution Control Board Rules and
Regulations at Title 35, Illinois Administrative
Code, Chapter I, Part 700, Outline of Waste Dis-
posal Regulations; Part 702, RCRA and UIC Per-
mit Programs; Part 704, UIC Permit Program; Part
705, Procedures for Permit Issuance and Part 730,
Underground Injection Control Operating Require-
ments as amended by IPCB Order No. R-83039
on December 15, 1983.
(b) The Memorandum of Agreement between
EPA Region V and the Illinois Environmental Pro-
tection Agency, signed by the EPA Regional Ad-
ministrator on March 22, 1984.
(c) Statement of legal authority. Letter from Illi-
nois Attorney General to Regional Administrator,
EPA Region V, and attached statement, December
16, 1982.
(d) The Program Description and any other ma-
terials submitted as part of the application or as
supplements thereto.
[49 FR 20197, May 11, 1984, as amended at 53 FR
43087, Oct. 25, 1988]
17
-------
§147.701
§147.701 State-administered pro-
gram—Class II wells.
The UIC program for Class II wells in the State
of Illinois, except those on Indian lands, is the
program administered by the Illinois Environ-
mental Protection Agency, approved by EPA pur-
suant to section 1425 of the SOW A. Notice of the
approval was published in the FEDERAL REGISTER
on February 1, 1984 (49 FR 3990); the effective
date of this program is March 3, 1984. This pro-
gram consists of the following elements, as sub-
mitted to EPA in the state's program application:
(a) Incorporation by reference. The require-
ments set forth in the State Statutes and regula-
tions cited in this paragraph are hereby incor-
porated by reference and made a part of the appli-
cable UIC program under the SDWA for the State
of Illinois. This incorporation by reference was ap-
proved by the Director of the FEDERAL REGISTER
on June 25, 1984.
(1) Conservation of Oil and Gas, etc., Illinois
Revised Statutes ch. 96V2, sections 5401 to 5457
(Smith-Kurd 1979 and Supp. 1983), as amended
by Public Act No. 83-1074 1983 Illinois Legisla-
tive Service pages 7183 to 7185 (West);
(2) Illinois Environmental Protection Act, Illi-
nois Revised Statutes ch. lllVz, sections 1001-
1051 (Smith-Kurd 1977 and Supp. 1983), as
amended by Public Act No. 83-431, 1983 Illinois
Legislative Services pages 2910 to 2916 (West);
(3) Illinois Revised Statutes ch. lOOVi, section
26 (Smith-Kurd Supp. 1983);
(4) Illinois Department of Mines and Minerals
Regulations for the Oil and Gas Division, Rules I,
II, IIA, III, V, VII, and IX (1981).
(b) The Memorandum of Agreement between
EPA Region V and the Illinois Department of
Mines and Minerals, signed by the EPA Regional
Administrator on March 22, 1984.
(c) Statement of legal authority. "Certification
of Legal Authority," signed by State Attorney,
Richland County, Illinois, May 5, 1982.
(d) The Program Description and any other ma-
terials submitted as part of the application or as
supplements thereto.
[49 FR 20197, May 11, 1984, as amended at 53 FR
43087, Oct. 25, 1988]
§147.703 EPA-administered program-
Indian lands.
(a) Contents. The UIC program for all classes of
wells on Indian lands in the State of Illinois is ad-
ministered by EPA. This program consists of the
UIC program requirements of 40 CFR parts 124,
144, 146, 148, and any additional requirements set
forth in the remainder of this subpart. Injection
well owners and operators, and EPA shall comply
with these requirements.
(b) Effective dates. The effective date for the
UIC program for Indian lands is November 25,
1988.
[53 FR 43087, Oct. 25, 1988, as amended at 56 FR 9414,
Mar. 6, 1991]
Subpart P—Indiana
§147.750 State-administered pro-
gram—Class II wells.
The UIC program for Class II injection wells in
the State of Indiana on non-Indian lands is the
program administered by the Indiana Department
of Natural Resources (INDR) approved by the
EPA pursuant to section 1425 of the SDWA. No-
tice of this approval was published in the FR on
August 19, 1991; the effective date of this pro-
gram is August 19, 1991. This program consists of
the following elements, as submitted to EPA in the
State's program application:
(a) Incorporation by reference. The require-
ments set forth in the State statutes and regulations
cited in this paragraph are hereby incorporated by
reference and made a part of the applicable UIC
program under the SDWA for the State of Indiana.
This incorporation by reference was approved by
the Director of the FR in accordance with 5
U.S.C. 552(a) and 1 CFR part 51. Copies may be
obtained at the Indiana Department of Natural Re-
sources, Division of Oil and Gas, 402 West Wash-
ington Street, room 293, Indianapolis, Indiana,
46204. Copies may be inspected at the Environ-
mental Protection Agency, Region V, 77 West
Jackson Boulevard, Chicago, Illinois, 60604, or at
the Office of the Federal Register, 800 North Cap-
itol Street NW., suite 700, Washington, DC.
(1) Indiana Code, title 4, article 21.5, chapters
1 through 6 (1988).
(2) West's Annotated Indiana Code, title 13, ar-
ticle 8, chapters 1 through 15 (1990 and Cumm.
Supp. 1990).
(3) Indiana Administrative Code, title 310, arti-
cle 7, rules 1 through 3 (Cumm. Supp. 1991).
(b) Memorandum of agreement. The Memoran-
dum of Agreement between EPA Region V and
the Indiana Department of Natural Resources
signed by the EPA Regional Administrator on
February 18, 1991.
(c) Statement of legal authority. Statement and
Amendment to the Statement from the Attorney
General of the State of Indiana, signed on July 12,
1990, and December 13, 1990, respectively.
(d) The Program Description and any other ma-
terials submitted as part of the original application
or as supplements thereto.
[56 FR 41072, Aug. 19, 1991, as amended at 62 FR
1834, Jan. 14, 1997]
18
-------
§147.850
§147.751 EPA-administered program.
(a) Contents. The UIC program for all classes of
wells on Indian lands, and for Class I, III, IV, and
V wells on non-Indian lands in the State of Indi-
ana is administered by the EPA. The program con-
sists of the UIC program requirements of 40 CFR
parts 124, 144, 146, and 148 and the additional re-
quirements set forth in the remainder of this sub-
part. Injection well owners and operators, and
EPA shall comply with these requirements.
(b) Effective dates. The effective date for the
UIC program on Indian lands is November 25,
1988. The effective date of the UIC program for
the rest of Indiana is June 25, 1984.
[53 FR 43087, Oct. 25, 1988, as amended at 56 FR 9414,
Mar. 6, 1991; 56 FR 41072, Aug. 19, 1991]
§147.802 Aquifer
served]
exemptions. [Re-
§147.752 Aquifer
served]
exemptions. [Re-
§147.753 Existing Class I and III wells
authorized by rule.
Maximum injection pressure. The owner or op-
erator shall limit injection pressure to the lessor
of:
(a) A value which will not exceed the operating
requirements of § 144.28(f)(3) (i) or (ii) as applica-
ble; or
(b) A value for well head pressure calculated by
using the following formula:
Pm=(0.800-0.433 Sg)d
where:
Pm=injection pressure at the wellhead in pounds per
square inch
Sg=specific gravity of injected fluid (unitless)
d=injection depth in feet.
[49 FR 20197, May 11, 1984, as amended at 56 FR
41072, Aug. 19, 1991]
Sub pa it Q—Iowa
§147.800 State-administered program.
[Reserved]
§147.801 EPA-administered program.
(a) Contents. The UIC program for the State of
Iowa, including all Indian lands, is administered
by EPA. This program consists of the UIC pro-
gram requirements of 40 CFR parts 124, 144, 146,
148, and any additional requirements set forth in
the remainder of this subpart. Injection well own-
ers and operators, and EPA shall comply with
these requirements.
(b) Effective dates. The effective date for the
UIC program for all lands in Iowa, including In-
dian lands, is June 25, 1984.
[52 FR 17681, May 11, 1987, as amended at 56 FR 9415,
Mar. 6, 1991]
Subpart R—Kansas
§147.850 State-administered pro-
gram—Class I, III, IV and V wells.
The UIC program for Class I, III, IV and V
wells in the State of Kansas, except those on In-
dian lands as described in § 147.860, is the pro-
gram administered by the Kansas Department of
Health and Environment, approved by EPA pursu-
ant to section 1422 of the SOW A. Notice of this
approval was published in the FEDERAL REGISTER
on December 2, 1983 (48 FR 54350); the effective
date of this program is December 2, 1983. This
program consists of the following elements, as
submitted to EPA in the State's program applica-
tion.
(a) Incorporation by reference. The require-
ments set forth in the State statutes and regulations
cited in this paragraph are hereby incorporated by
reference and made a part of the applicable UIC
program under the SDWA for the State of Kansas.
This incorporation by reference was approved by
the Director of the OFR in accordance with 5
U.S.C. 552(a) and 1 CFR part 51. Copies may be
obtained at the Kansas Department of Health and
Environment, Forbes Field, Building 740, Topeka,
Kansas, 66620. Copies may be inspected at the
Environmental Protection Agency, Region VII,
726 Minnesota Avenue, Kansas City, Kansas,
66101, or at the Office of the FEDERAL REGISTER,
800 North Capitol Street, NW., suite 700, Wash-
ington, DC.
(1) Chapter 28, Article 46, Underground Injec-
tion Control Regulations, Kansas Administrative
Regulations §§28-46-1 through 28^16^12 (1986
and Supp. 1987);
(2) Chapter 28, Article 43, Construction, oper-
ation, monitoring and abandonment of salt solution
mining wells, Kansas Administrative Regulations
§§28-43-1 through 28^13-10 (1986);
(3) Kansas Statutes Annotated §§65-161, 65-
164 through 65-166a, 65-171d (1980 and Cumm.
Supp. 1989).
(b) Other laws. The following statutes and regu-
lations, although not incorporated by reference ex-
cept for the select sections identified in paragraph
(a) of this section, are also part of the approved
State-administered program: Kansas Statutes An-
notated §§65-161 through 65-171(w), (1980 and
Supp. 1983).
(c) Memorandum of Agreement. (1) The Memo-
randum of Agreement between EPA Region VII
and the Kansas Department of Health and Envi-
ronment, signed by the EPA Regional Adminis-
trator on July 29, 1983;
19
-------
§147.851
(2) Addendum No. 1 of the Memorandum of
Agreement, signed by the EPA Regional Adminis-
trator on August 29, 1983.
(d) Statement of legal authority. (1) "Statement
of Attorney General", signed by the Attorney
General of the State of Kansas, November 25,
1981;
(2) "Supplemental Statement of Attorney Gen-
eral", signed by the Attorney General of the State
of Kansas, undated (one page).
(e) Program description. The program descrip-
tion and any other materials submitted as part of
the application or supplements thereto.
[49 FR 45306, Nov. 15, 1984, as amended at 56 FR
9415, Mar. 6, 1991]
§147.851 State-administered pro-
gram—Class II wells.
The UIC program for Class II wells in the State
of Kansas, except those on Indian lands as de-
scribed in § 147.860, is the program administered
by the Kansas Corporation Commission and the
Kansas Department of Health and Environment,
approved by EPA pursuant to section 1425 of the
SDWA. Notice of this approval was published in
the FEDERAL REGISTER on February 8, 1984 (49
FR 4735); the effective date of this program is
February 8, 1984. This program consists of the
following elements, as submitted to EPA in the
State's program application.
[49 FR 45306, Nov. 15, 1984]
§§147.852—147.859 [Reserved]
§147.860 EPA-administered program—
Indian lands.
(a) Contents. The UIC program for all classes of
wells on Indian lands in the State of Kansas is ad-
ministered by EPA. This program consists of the
UIC program requirements of 40 CFR parts 124,
144, 146, 148, and any additional requirements set
forth in the remainder of this subpart. Injection
well owners and operators, and EPA shall comply
with these requirements.
(b) Effective date. The effective date of the UIC
program for Indian lands in Kansas is December
30, 1984.
[49 FR 45307, Nov. 15, 1984, as amended at 56 FR
9415, Mar. 6, 1991]
Subpart S—Kentucky
§147.900 State-administered program.
[Reserved]
§147.901 EPA-administered program.
(a) Contents. The UIC program for the Com-
monwealth of Kentucky, including all Indian
lands, is administered by EPA. This program con-
sists of the UIC program requirements of 40 CFR
parts 124, 144, 146, 148, and any additional re-
quirements set forth in the remainder of this sub-
part. Injection well owners and operators, and
EPA shall comply with these requirements.
(b) Effective dates. The effective date for the
UIC program on Indian lands is November 25,
1988. The effective date for the UIC program in
the remainder of Kentucky is June 25, 1984.
[53 FR 43087, Oct. 25, 1988, as amended at 56 FR 9415,
Mar. 6, 1991]
§147.902 Aquifer
served]
exemptions. [Re-
§147.903 Existing Class I, II (except
enhanced recovery and hydro-
carbon storage) and III wells au-
thorized by rule.
Maximum injection pressure. The owner or op-
erator shall limit injection pressure to the lesser of:
(a) A value which will not exceed the operating
requirements of § 144.28(f)(3) (i) or (ii) as applica-
ble or;
(b) A value for well head pressure calculated by
using the following formula:
Pm=(0.733-0.433 Sg)d
where
Pm=injection pressure at the well head in pounds per
square inch
Sg=specific gravity of inject fluid (unitless)
d=injection depth in feet.
§147.904 Existing Class II enhanced
recovery and hydrocarbon storage
wells authorized by rule.
(a) Maximum injection pressure. (1) To meet
the operating requirements of § 144.28(f)(3)(ii) (A)
and (B) of this chapter, the owner or operator:
(i) Shall use an injection pressure no greater
than the pressure established by the Regional Ad-
ministrator for the field or formation in which the
well is located. The Regional Administrator shall
establish such a maximum pressure after notice,
opportunity for comment, and opportunity for a
public hearing, according to the provisions of part
124, subpart A of this chapter, and will inform
owners and operators in writing of the applicable
maximum pressure; or
(ii) May inject at pressures greater than those
specified in paragraph (a)(l)(i) of this section for
the field or formation in which he is operating
provided he submits a request in writing to the
Regional Administrator, and demonstrates to the
satisfaction of the Regional Administrator that
such injection pressure will not violate the require-
ment of § 144.28(f)(3)(ii) (A) and (B). The Re-
gional Administrator may grant such a request
20
-------
§147.950
after notice, opportunity for comment, and oppor-
tunity for a public hearing, according to the provi-
sions of part 124, subpart A of this chapter.
(2) Prior to such time as the Regional Adminis-
trator establishes rules for maximum injection
pressure based on data provided pursuant to para-
graph (a)(2)(ii) of this section the owner or opera-
tor shall:
(i) Limit injection pressure to a value which
will not exceed the operating requirements of
§ 144.28(f)(3)(ii); and
(ii) Submit data acceptable to the Regional Ad-
ministrator which defines the fracture pressure of
the formation in which injection is taking place. A
single test may be submitted on behalf of two or
more operators conducting operations in the same
formation, if the Regional Administrator approves
such submission. The data shall be submitted to
the Regional Administrator within 1 year of the
effective date of this program.
(b) Casing and Cementing. Where the Regional
Administrator determines that the owner or opera-
tor of an existing enhanced recovery or hydro-
carbon storage well may not be in compliance
with the requirements of §§ 144.28(e) and 146.22,
the owner or operator shall comply with para-
graphs (b) (1) through (4) of this section, when re-
quired by the Regional Administrator:
(1) Protect USDWs by:
(i) Cementing surface casing by recirculating
the cement to the surface from a point 50 feet
below the lowermost USDW; or
(ii) Isolating all USDWs by placing cement be-
tween the outermost casing and the well bore; and
(2) Isolate any injection zones by placing suffi-
cient cement to fill the calculated space between
and the casing the well bore to a point 250 feet
above the injection zone; and
(3) Use cement:
(i) Of sufficient quantity and quality to with-
stand the maximum operating pressure;
(ii) Which is resistant to deterioration from for-
mation and injection fluids; and
(iii) In a quantity no less than 120% of the cal-
culated volume necessary to cement off a zone.
(4) The Regional Administrator may specify
other requirements in addition to or in lieu of the
requirements set forth in paragraphs (b) (1)
through (3) of this section, as needed to protect
USDWs.
§147.905 Requirements for all wells-
area of review.
Notwithstanding the alternatives presented in
§ 146.6 of this chapter, the area of review shall be
a minimum fixed radius as described in § 146.6(b)
of this chapter.
Subpart T—Louisiana
§147.950 State-administered program.
The UIC program for Class I, II, III, IV, and V
wells in the State of Louisiana, except those wells
on Indian lands, is the program administered by
the Louisiana Department of Natural Resources
approved by EPA pursuant to sections 1422 and
1425 of the SDWA. Notice of this approval was
published in the FEDERAL REGISTER on April 23,
1982 (47 FR 17487); the effective date of this pro-
gram is March 23, 1982. This program consists of
the following elements, as submitted to EPA in the
State's program application:
(a) Incorporation by reference. The require-
ments set forth in the State statutes and regulations
cited in this paragraph are hereby incorporated by
reference and made a part of the applicable UIC
program under the SDWA for the State of Louisi-
ana. This incorporation by reference was approved
by the Director of the Federal Register on June 25,
1984.
(1) Louisiana Revised Statutes Annotated sec-
tions 30:1-30:24 (1975 and Supp. 1982);
(2) Underground Injection Control Program
Regulations for Class I, III, IV, and V wells,
Statewide Order No. 29-N-l (February 20, 1982),
as amended June 1, 1985 and January 20, 1986;
(3)(i) Statewide Order Governing the Drilling
for and Producing of Oil and Gas in the State of
Louisiana, Statewide Order No. 29-B (August 26,
1974) (Composite Order Incorporating Amend-
ments through March 1, 1974);
(ii) Amendments to Statewide Order No. 29-B
(Off-site Disposal of Drilling Mud and Salt Water
Generated from Drilling and Production of Oil and
Gas Wells) (effective July 20, 1980);
(iii) Amendment to Statewide Order No. 29-B
(Amendment concerning the use of Tables 5A and
6A, etc.) (December 15, 1980, effective January 1,
1981);
(iv) Amendment to Statewide Order No. 29-B
(Amendment concerning the underground injection
control of saltwater disposal wells, enhanced re-
covery injection wells, and liquid hydrocarbon
storage wells) (effective February 20, 1982);
(v) Amendment to Statewide Order No. 29-B
(Amendment concerning the offsite disposal of
drilling mud and saltwater) (effective May 20,
1983);
(vi) Amendment to Statewide Order No. 29-B
(Amendment concerning disposal of nonhazardous
oilfield waste) (March 20, 1984, effective May 20,
1984);
(vii) Amendment to Statewide Order No. 29-B
(Amendment concerning the administrative ap-
proval of injectivity tests and pilot projects in
order to determine the feasibility of proposed en-
21
-------
§147.951
hanced recovery projects) (June 20, 1985, effective
July 1, 1985).
(4) (i) Statewide Order adopting rules and regu-
lations pertaining to the use of salt dome cavities
(i.e., storage chambers) for storage of liquid and/
or gaseous hydrocarbons, etc., Statewide Order
No. 29-M (July 6, 1977, effective July 20, 1977);
(ii) Supplement to Statewide Order No. 29-M
(October 2, 1978);
(iii) Second Supplement to Statewide Order No.
29-M (June 8, 1979).
(b)(l) The Memorandum of Agreement (Class I,
III, IV, and V wells) between EPA Region VI and
the Louisiana Department of Natural Resources,
Office of Conservation, signed by the EPA Re-
gional Administrator on March 17, 1982 and
amended by Addendum 1 and Addendum 2 on
November 3, 1989;
(2) The Memorandum of Agreement (Class II
wells) between EPA Region VI and the Louisiana
Department of Natural Resources, Office of Con-
servation, signed by the EPA Regional Adminis-
trator on March 17, 1982.
(c) Statement of legal authority. (1) Letter from
Attorney General of Louisiana to EPA, "Re: Lou-
isiana Underground Injection Control Program Au-
thorization for State of Louisiana'' (Class I, III, IV
and V Wells), January 13, 1982, (10 pages);
(2) Letter from Attorney General of Louisiana
to EPA, "Re: Louisiana Underground Injection
Control Program Authorization for State of Louisi-
ana" (Class II Wells), January 13, 1982 (5 pages).
(3) Letter from Attorney General of Louisiana
to EPA, "Re: Class I Hazardous Waste Injection
Well Regulatory Program; Attorney General's
Statement, October 9, 1989 (9 pages);
(d) The Program Description and any other ma-
terials submitted as part of the application or as
supplements thereto.
[49 FR 20197, May 11, 1984, as amended at 56 FR 9415,
Mar. 6, 1991]
§147.951 EPA-administered program—
Indian lands.
(a) Contents. The UIC program for all classes of
wells on Indian lands in the State of Louisiana is
administered by EPA. This program consists of the
UIC program requirements of 40 CFR parts 124,
144, 146, 148, and any additional requirements set
forth in the remainder of this subpart. Injection
well owners and operators, and EPA shall comply
with these requirements.
(b) Effective dates. The effective date of the
UIC program for Indian lands in Louisiana is No-
vember 25, 1988.
[53 FR 43087, Oct. 25, 1988, as amended at 56 FR 9415,
Mar. 6, 1991]
Subpart U—Maine
§147.1000 State-administered pro-
gram.
The UIC program for all classes of wells in the
State of Maine, except those on Indian lands, is
the program administered by the Maine Depart-
ment of Environmental Protection approved by
EPA pursuant to section 1422 of the SOW A. No-
tice of this approval was published in the FED-
ERAL REGISTER on August 25, 1983 (48 FR
38641); the effective date of this program is Sep-
tember 26, 1983. This program consists of the fol-
lowing elements, as submitted to EPA in the
State's program application.
(a) Incorporation by reference. The require-
ments set forth in the State statutes and regulations
cited in this paragraph are hereby incorporated by
reference and made part of the applicable UIC
program under the SDWA for the State of Maine.
This incorporation by reference was approved by
the Director of the OFR on June 25, 1984.
(1) Maine Revised Statutes Annotated title 38,
sections 361-A, 363-B, 413, 414, 414-A, 420,
and 1317-A (1978);
(2) Rules to Control the Subsurface Discharge
of Pollutants by Well Injection, Rules of the De-
partment of Environmental Protection, Chapter
543 (adopted June 22, 1983, effective July 4,
1983).
(b) The Memorandum of Agreement between
EPA Region I and the Maine Department of Envi-
ronmental Protection, signed by the EPA Regional
Administrator on May 16, 1983.
(c) Statement of legal authority. Letter from At-
torney General of Maine to EPA Regional Admin-
istrator, "Re: Attorney General's Statement:
Maine Underground Injection Control Program
Primacy Application," June 30, 1983.
(d) The Program Description and any other ma-
terials submitted as part of the application or as
supplements thereto.
[49 FR 20197, May 11, 1984, as amended at 53 FR
43088, Oct. 25, 1988; 56 FR 9415, Mar. 6, 1991]
§147.1001 EPA-administered pro-
gram—Indian lands.
(a) Contents. The UIC program for all classes of
wells on Indian lands in the State of Maine is ad-
ministered by EPA. This program consists of the
UIC program requirements of 40 CFR parts 124,
144, 146, 148, and any additional requirements set
forth in the remainder of this subpart. Injection
well owners and operators and EPA shall comply
with these requirements.
22
-------
§147.1100
(b) Effective dates. The effective date of the
UIC program for Indian lands in Maine is Novem-
ber 25, 1988.
[53 FR 43088, Oct. 25, 1988, as amended at 56 FR 9416,
Mar. 6, 1991]
Subpart V—Maryland
§147.1050 State-administered pro-
gram—Class I, II, III, IV, and V
wells.
The UIC program for Class I, II, III, IV, and V
wells in the State of Maryland, except those wells
on Indian lands, is the program administered by
the Maryland Department of the Environment ap-
proved by EPA pursuant to section 1422 of the
SDWA. Notice of this approval was published in
the FR on April 19, 1984 (49 FR 15553); the ef-
fective date of this program is June 4, 1984. This
program consists of the following elements, as
submitted to EPA in the State's program applica-
tion:
(a) Incorporation by reference. The require-
ments set forth in the State statutes and regulations
cited in this paragraph are hereby incorporated by
reference and made a part of the applicable UIC
program under the SDWA for the State of Mary-
land. This incorporation by reference was ap-
proved by the Director of the OFR in accordance
with 5 U.S.C. 552(a) and 1 CFR part 51. Copies
may be obtained at the Maryland Department of
the Environment, 2500 Broening Highway, Balti-
more, Maryland, 21224. Copies may be inspected
at the Environmental Protection Agency, Region
III, 841 Chestnut Street, Philadelphia, Pennsylva-
nia, 19107, or at the Office of the Federal Reg-
ister, 800 North Capitol Street, NW., suite 700,
Washington, DC.
(1) Code of Maryland Regulations, Title 26,
Subtitle 08, Chapter 07 promulgated and effective
as of March 1, 1989;
(2) Code of Maryland Regulations, Title 26,
Subtitle 08, Chapter 01, promulgated and effective
as of March 1, 1989;
(3) Code of Maryland Regulations, Title 26,
Subtitle 08, Chapter 02, promulgated and effective
as of March 1, 1989;
(4) Code of Maryland Regulations, Title 26,
Subtitle 08, Chapter 03, promulgated and effective
as of March 1, 1989;
(5) Code of Maryland Regulations, Title 26,
Subtitle 08, Chapter 04, promulgated and effective
as of March 1, 1989;
(6) Code of Maryland Regulations, Title 26,
Subtitle 13, Chapter 05, section .19, promulgated
and effective as of August 1, 1989;
(7) Code of Maryland Regulations, Title 26,
Subtitle 01, Chapter 02, promulgated and effective
as of March 1, 1989;
(8) Code of Maryland Regulations, Title 26,
Subtitle 01, Chapter 04, promulgated and effective
as of March 1, 1989.
(b) Memorandum of Agreement. The Memoran-
dum of Agreement between EPA Region III and
the Maryland Department of the Environment, as
submitted on August 2, 1983, and revised on Feb-
ruary 16, 1984.
(c) Statement of legal authority. Statement from
the Maryland Attorney General on the Under-
ground Injection Control Program, as submitted on
August 2, 1983, and revised on February 16, 1984.
(d) Program Description. The Program Descrip-
tion and other materials submitted as part of the
application or as supplements thereto.
[56 FR9416, Mar. 6, 1991]
§§147.1051—147.1052 [Reserved]
§147.1053 EPA-administered pro-
gram—Indian lands.
(a) Contents. The UIC program for all classes of
wells on Indian lands in the State of Maryland is
administered by EPA. This program consists of the
UIC program requirements of 40 CFR parts 124,
144, 146, 148, and any additional requirements set
forth in the remainder of this subpart. Injection
well owners and operators, and EPA shall comply
with these requirements.
(b) Effective date. The effective date of the UIC
program for Indian lands in Maryland is Novem-
ber 25, 1988.
[53 FR 43088, Oct. 25, 1988, as amended at 56 FR 9416,
Mar. 6, 1991]
§§147.1054—147.1099 [Reserved]
Subpart W—Massachusetts
§147.1100 State-administered pro-
gram.
The UIC program for all classes of wells in the
State of Massachusetts, except those on Indian
lands, is the program administered by the Massa-
chusetts Department of Environmental Protection,
approved by EPA pursuant to section 1422 of the
SDWA. Notice of this approval was published in
the FEDERAL REGISTER on November 23, 1982 (47
FR 52705); the effective date of this program is
December 23, 1982. This program consists of the
following elements, as submitted to EPA in the
State's program application:
(a) Incorporation by reference. The require-
ments set forth in the State statutes and regulations
cited in this paragraph are hereby incorporated by
reference and made a part of the applicable UIC
program under the SDWA for the State of Massa-
chusetts. This incorporation by reference was ap-
23
-------
§147.1101
proved by the Director of the Federal Register on
June 25, 1984.
(1) Massachusetts General Laws Annotated
chapter 21, sections 27, 43, and 44 (West 1981);
(2) Code of Massachusetts Regulations, title
310, sections 23.01-23.11 as amended April 26,
1982.
(b) The Memorandum of Agreement between
EPA Region I and the Massachusetts Department
of Environmental Quality Engineering, signed by
the EPA Regional Administrator on August 18,
1982.
(c) Statement of legal authority. ' 'Underground
Injection Control Program—Attorney General's
Statement for Class I, II, III, IV and V Injection
Wells," signed by Assistant Attorney General for
Attorney General of Massachusetts, May 13, 1982.
(d) The Program Description and any other ma-
terials submitted as part of the application or as
supplements thereto.
[49 FR 20197, May 11, 1984, as amended at 53 FR
43088, Oct. 25, 1988]
§147.1101 EPA-administered pro-
gram—Indian lands.
(a) Contents. The UIC program for all classes of
wells on Indian lands in the State of Massachu-
setts is administered by EPA. This program con-
sists of the UIC program requirements of 40 CFR
parts 124, 144, 146, 148, and any additional re-
quirements set forth in the remainder of this sub-
part. Injection well owners and operators, and
EPA shall comply with these requirements.
(b) Effective date. The effective date of the UIC
program for Indian lands in Massachusetts is No-
vember 25, 1988.
[53 FR 43088, Oct. 25, 1988, as amended at 56 FR 9416,
Mar. 6, 1991]
Subpart X—Michigan
§ 147.1150 State-administered
gram. [Reserved]
pro-
§ 147.1151 EPA-administered program.
(a) Contents. The UIC program for the State of
Michigan, including all Indian lands, is adminis-
tered by EPA. This program consists of the UIC
program requirements of 40 CFR parts 124, 144,
146, 148, and any additional requirements set forth
in the remainder of this subpart. Injection well
owners and operators, and EPA shall comply with
these requirements.
(b) Effective dates. The effective date for the
UIC program for all lands in Michigan, including
Indian lands, is June 25, 1984.
[52 FR 17681, May 11, 1987, as amended at 56 FR 9416,
Mar. 6, 1991]
§147.1152 Aquifer exemptions. [Re-
served]
§147.1153 Existing Class I, II (except
enhanced recovery and hydro-
carbon storage) and III wells au-
thorized by rule.
Maximum injection pressure. The owner or op-
erator shall limit injection pressure to the lesser of:
(a) A value which will not exceed the operating
requirements of § 144.28(f)(3) (i) or (ii) as applica-
ble; or
(b) A value for well head pressure calculated by
using the following formula:
Pm=(0.800-0.433 Sg)d
where
Pm=injection pressure at the well head in pounds per
square inch
Sg=specific gravity of injected fluid (unitless)
d=injection depth in feet.
§147.1154 Existing Class II enhanced
recovery and hydrocarbon storage
wells authorized by rule.
(a) Maximum injection pressure. (1) To meet
the operating requirements of § 144.28(f)(3)(ii) (A)
and (B) of this chapter, the owner or operator:
(i) Shall use an injection pressure no greater
than the pressure established by the Regional Ad-
ministrator for the field or formation in which the
well is located. The Regional Administrator shall
establish such a maximum pressure after notice,
opportunity for comment, and opportunity for a
public hearing, according to the provisions of part
124, subpart A of this chapter, and will inform
owners and operators in writing of the applicable
maximum pressure; or
(ii) May inject at pressures greater than those
specified in paragraph (a)(l)(i) of this section for
the field or formation in which he is operating
provided he submits a request in writing to the
Regional Administrator, and demonstrates to the
satisfaction of the Regonal Administrator that such
injection pressure will not violate the requirement
of § 144.28(f)(3)(ii) (A) and (B). The Regional
Administrator may grant such a request after no-
tice, opportunity for comment, and opportunity for
a public hearing, according to the provisions of
part 124, subpart A of this chapter.
(2) Prior to such time as the Regional Adminis-
trator establishes field rules for maximum injection
pressure based on data provided pursuant to para-
graph (a)(2)(ii) of this section the owner or opera-
tor shall:
(i) Limit injection pressure to a value which
will not exceed the operating requirements of
§ 144.28(f)(3)(ii); and
(ii) Submit data acceptable to the Regional Ad-
ministrator which defines the fracture pressure of
24
-------
§147.1250
the formation in which injection is taking place. A
single test may be submitted on behalf of two or
more operators conducting operations in the same
formation, if the Regional Administrator approves
such submission. The data shall be submitted to
the Regional Administrator within 1 year follow-
ing the effective date of this program.
(b) Casing and cementing. Where the Regional
Administrator determines that the owner or opera-
tor of an existing enhanced recovery or hydro-
carbon storage will may not be in compliance with
the requirements of §§ 144.28(e) and 146.22, the
owner or operator shall comply with paragraphs
(b) (1) through (4) of this section, when required
by the regional Administrator:
(1) Protect USDWs by:
(i) Cementing surface casing by recirculating
the cement to the surface from a point 50 feet
below the lowermost USDW; or
(ii) Isolating all USDWs by placing cement be-
tween the outermost casing and the well bore; and
(2) Isolate any injection zones by placing suffi-
cient cement to fill the calculated space between
the casing and the well bore to a point 250 feet
above the injection zone; and
(3) Use cement:
(i) Of sufficient quantity and quality to with-
stand the maximum operating pressure;
(ii) Which is resistant to deterioration from for-
mation and injection fluids; and
(iii) In a quantity no less than 120% of the cal-
culated volume necessary to cement off a zone.
(4) The Regional Administrator may specify
other requirements in addition to or in lieu of the
requirements set forth in paragraphs (b) (1)
through (3) of this section, as needed to protect
USDWs.
§ 147.1155 Requirements for all wells.
(a) Area of review. Notwithstanding the alter-
natives presented in § 146.6 of this chapter, the
area of review for Class II wells shall be a fixed
radius as described in § 146.6(b) of this chapter.
(b) Tubing and packer. The owner or operator
of an injection well injecting salt water for dis-
posal shall inject through tubing and packer. The
owner of an existing well must comply with this
requirement within one year of the effective date
of this program.
Supbart Y—Minnesota
§147.1200 State-administered pro-
gram. [Reserved]
§147.1201 EPA-administered program.
(a) Contents. The UIC program for the State of
Minnesota is administered by EPA. This program
consists of the UIC program requirements of 40
CFR parts 124, 144, 146, 148, and any additional
requirements set forth in the remainder of this sub-
part. Injection well owners and operators, and
EPA shall comply with these requirements.
(b) Effective date. The effective date of the UIC
program for Minnesota is: June 11, 1984.
[49 FR 20197, May 11, 1984, as amended at 56 FR 9416,
Mar. 6, 1991]
§147.1202 Aquifer
served]
exemptions. [Re-
§147.1210 Requirements for Indian
lands.
(a) Purpose and scope. This section sets forth
additional requirements that apply to injection ac-
tivities on Indian lands in Minnesota.
(b) Requirements. Notwithstanding the other re-
quirements of this subpart, for Indian lands de-
scribed in paragraph (a) of this section, no owner
or operator shall construct, operate, maintain, or
convert any Class I, II, III, or IV well. The UIC
program for Class V wells on such Indian Lands
is administered by EPA, and consists of the appli-
cable requirements of 40 CFR parts 124, 144, and
146. In addition, no owner or operator shall aban-
don a well without the approval of the Regional
Administrator.
(c) Effective date. The effective date of the UIC
program requirements for Indian lands in Min-
nesota is December 30, 1984.
[49 FR 45307, Nov. 15, 1984]
Subpart Z—Mississippi
§147.1250 State-administered pro-
gram—Class I, III, IV, and V wells.
The UIC program for Class I, III, IV and V
wells in the State of Mississippi, except those on
Indian lands, is the program administered by the
Mississippi Department of Natural Resources ap-
proved by EPA pursuant to section 1422 of the
SDWA. Notice of this approval was published in
the FEDERAL REGISTER on August 25, 1983 (48
FR 38641); the effective date of this program is
September 26, 1983. This program consists of the
following elements, as submitted to EPA in the
State's program application:
(a) Incorporation by reference. The require-
ments set forth in the State statutes and regulations
cited in this paragraph are hereby incorporated by
reference and made a part of the applicable UIC
program under the SDWA for the State of Mis-
sissippi. This incorporation by reference was ap-
proved by the Director of the Federal Register on
June 25, 1984.
25
-------
§147.1251
(1) Mississippi Air and Water Pollution Control
Law, Mississippi Code Annotated sections 49—17—
1 through 49-17-29 (1972) and Supp. 1983);
(2) Mississippi Department of Natural Re-
sources, Bureau of Pollution Control, Underground
Injection Control Program Regulations (adopted
February 11, 1982);
(3) Mississippi Department of Natural Re-
sources, Bureau of Pollution Control, State of Mis-
sissippi Wastewater Permit Regulations for Na-
tional Pollutant Discharge Elimination System
(NPDES), Underground Injection Control (UIC),
and State Operating Permits (adopted May 1,
1974; amended February 11, 1982).
(b) The Memorandum of Agreement between
EPA Region IV and the Mississippi Department of
Natural Resources, signed by the EPA Regional
Administrator on February 8, 1983.
(c) Statement of legal authority. (1) Letter from
Attorney General of Mississippi (by Special As-
sistant Attorney General) to Executive Director,
Mississippi Department of Natural Resources,
"Re: Mississippi Department of Natural Re-
sources, Bureau of Pollution Control, State Under-
ground Injection Control (UIC) Program; State-
ment of the Attorney General of the State of Mis-
sissippi," December 3, 1981;
(2) Letter from Attorney General of Mississippi
(by Special Assistant Attorney General) to Execu-
tive Director, Mississippi Department of Natural
Resources, "Re: Authority to Regulate and Take
Samples from Underground Injection Systems,"
October 18, 1982;
(3) Letter from Attorney General of Mississippi
(by Special Assistant Attorney General) to Re-
gional Administrator, EPA Region IV, "Re: Pub-
lic Participation in State Enforcement Actions,
UIC Program," June 10, 1983.
(d) The Program Description and any other ma-
terials submitted as part of the application or sup-
plements thereto.
[49 FR 20197, May 11, 1984, as amended at 53 FR
43088, Oct. 25, 1988]
§147.1251 State-administered pro-
gram—Class II wells.
The UIC program for Class II wells in the State
of Mississippi, other than those on Indian lands, is
the program administered by the State Oil and Gas
Board of Mississippi approved by EPA pursuant to
section 1425 of the SOW A. Notice of this ap-
proval was published in the FEDERAL REGISTER on
March 2, 1989; the effective date of this program
is March 2, 1989. This program consists of the
following elements, as submitted to EPA in the
State's program application:
(a) Incorporation by reference. The requirements
set forth in the State statutes and regulations cited
in this paragraph are hereby incorporated by ref-
erence and made a part of the applicable UIC pro-
gram under the SDWA for the State of Mis-
sissippi. This incorporation by reference was ap-
proved by the Director of the Federal Register in
accordance with 5 U.S.C. 552(a).
(1) Mississippi Code Annotated, section 5-9-9
(Supp. 1988).
(2) Mississippi Code Annotated, sections 53—1—
1 through 53-1-47, inclusive and sections 53—1—
71 through 53-1-77, inclusive (1972 and Supp.
1988).
(3) Mississippi Code Annotated, sections 53-3-
1 through 53-3-165, inclusive (1972 and Supp.
1988).
(4) State Oil and Gas Board Statewide Rules
and Regulations, Rules 1 through 65, inclusive
(Aug. 1, 1987, as amended, Sept. 17, 1987).
(b) The Memorandum of Agreement between
EPA Region IV and the State Oil and Gas Board
of Mississippi signed by the Regional Adminis-
trator on October 31, 1988.
(c) Statement of legal authority. Statement from
the Attorney General signed on October 1, 1987
with amendments to the Statement signed August
5, 1988 and September 15, 1988 by the Special
Assistant Attorney General.
(d) The Program Description and any other ma-
terials submitted as part of the original application
or as supplements thereto.
[54 FR 8735, Mar. 2, 1989]
§147.1252 EPA-administered pro-
gram—Indian lands.
(a) Contents. The UIC program for all classes of
wells on Indian lands in the State of Mississippi
is administered by EPA. This program consists of
the UIC program requirements of 40 CFR parts
124, 144, 146, 148, and any additional require-
ments set forth in the remainder of this subpart.
Injection well owners and operators, and EPA
shall comply with these requirements.
(b) Effective date. The effective date of the UIC
program on Indian lands is November 25, 1988.
[53 FR 8735, Mar. 2, 1989, as amended at 56 FR 9416,
Mar. 6, 1991]
Subpart AA—Missouri
147.1300 State-administered program.
The UIC program for all classes of wells in the
State of Missouri, except those on Indian lands, is
administered by the Missouri Department of Natu-
ral Resources, approved by EPA pursuant to sec-
tion 1422 and 1425 of the SDWA. Notice of this
approval was published in the FEDERAL REGISTER
on December 2, 1983 (48 FR 54349); the effective
date of this program is December 2, 1983). This
program consists of the following elements, as
26
-------
§147.1350
submitted to EPA in the State's program applica-
tion.
(a) Incorporation by reference. The require-
ments set forth in the State statutes and regulations
cited in this paragraph are hereby incorporated by
reference and made a part of the applicable UIC
program under the SDWA for the State of Mis-
souri. This incorporation by reference was ap-
proved by the Director of the Federal Register on
June 25, 1984.
(1) Vernon's Annotated Missouri Statutes sec-
tions 259.010 to 259.240 (Supp. 1984);
(2) Missouri Code of State Regulations, title 10,
division 50, chapters 1 and 2 (June 1984);
(3) Vernon's Annotated Missouri Statutes chap-
ter 204, §§204.006 through 204.470 (1983 and
Cumm. Supp. 1990).
(b) The Memorandum of Agreement between
EPA Region VII and the Missouri Department of
Oil and Gas, signed by the EPA Regional Admin-
istrator on December 3, 1982.
(c) Statement of legal authority. (1) Opinion
Letter No. 63 and attached Memorandum Opinion,
signed by Attorney General of Missouri, March
16, 1982;
(2) Addendum to Opinion Letter No. 63 (1982),
signed by Attorney General of Missouri, October
28, 1982.
(3) Opinion No. 127-83, signed by Attorney
General of Missouri, July 11, 1983.
(d) The Program Description and any other ma-
terials submitted as part of the application or as
supplements thereto.
[49 FR 20197, May 11, 1984, as amended at 53 FR
43088, Oct. 25, 1988; 56 FR 9416, Mar. 6, 1991]
§147.1301 State-administered pro-
gram—Class I, III, IV, and V wells.
The UIC program for Class I, III, IV, and V
wells in the State of Missouri, other than those on
Indian lands, is the program administered by the
Missouri Department of Natural Resources, ap-
proved by EPA pursuant to section 1422 of the
SDWA. Notice of this approval was published in
the FEDERAL REGISTER on November 2, 1984; the
effective date of this program is July 31, 1985.
This program consists of the following elements,
as submitted to EPA in the State's program appli-
cation.
(a) Incorporation by reference. The require-
ments set forth in the State statutes and regulations
cited in this paragraph are hereby incorporated by
reference and made a part of the applicable UIC
program under the SDWA for the State of Mis-
souri. This incorporation by reference was ap-
proved by the Director of the Federal Register ef-
fective July 31, 1985.
(1) Revised Statutes of the State of Missouri,
Volume 2, sections 204.016, 204.026, 204.051,
204.056 and Volume V, section 577.155 (1978
and Cumm. Supp. 1984);
(2) Missouri Code of State Regulations, title 10,
division 20, Chapter 6, sections 20-6.010, 20-
6.020, 20-6.070, 20-6.080, 20-6.090, and title 10,
division 20, Chapter 7, section 20-7.031 (1977,
amended 1984).
(b) Other laws. The following statutes and regu-
lations, although not incorporated by reference ex-
cept for select sections identified in paragraph (a)
of this section, are also part of the approved State-
administered program.
(1) Revised Statutes of the State of Missouri,
chapters 204, 260, 536, 557, 558 and 560; sections
640.130.1 and 1.020 (1978 and Cumm. Supp.
1984);
(2) Rule 52.12 Vernon's Annotated Missouri
Rules (1978);
(3) Missouri Code of State Regulations, title 10,
division 20, Chapters 1 through 7 (1977, amended
1984).
(c) The Memorandum of Agreement between
EPA Region VII and the Missouri Department of
Natural Resources, signed by the EPA Regional
Administrator on October 10, 1984.
(d) Statement of Legal Authority. Opinion No.
123-84, signed by Attorney General of Missouri,
September 24, 1984. Amended April 2, 1985.
(e) The Program Description and any other ma-
terials submitted as part of the application or as
supplements thereto.
[50 FR 28942, July 17, 1985]
§147.1302 Aquifer exemptions. [Re-
served]
§147.1303 EPA-administered pro-
gram—Indian lands.
(a) Contents. The UIC program for all classes of
wells on Indian lands in the State of Missouri is
administered by EPA. This program consists of the
UIC program requirements of 40 CFR parts 124,
144, 145, 146, 148, and any additional require-
ments set forth in the remainder of this subpart.
Injection well owners and operators, and EPA
shall comply with these requirements.
(b) Effective date. The effective date for the
UIC program for Indian lands is November 25,
1988.
[53 FR 43088, Oct. 25, 1988, as amended at 56 FR 9417,
Mar. 6, 1991]
Subpart BB—Montana
§147.1350 State-administered pro-
grams—Class II wells.
The UIC program for Class II injection wells in
the State of Montana, except for those in Indian
Country, is the program administered by the Mon-
27
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§147.1351
tana Board of Oil and Gas Conservation
(MBOGC) approved by the EPA pursuant to Sec-
tion 1425 of the SOW A. Notice of this approval
was published in the FEDERAL REGISTER on No-
vember 19, 1996; the effective date of this pro-
gram is November 19, 1996. This program con-
sists of the following elements as submitted to
EPA in the State's program application:
(a) Incorporation by reference. The require-
ments set forth in the State statutes and regulations
cited in this paragraph are hereby incorporated by
reference and made part of the applicable UIC
program under the SDWA for the State of Mon-
tana. This incorporation by reference was ap-
proved by the Director of the FR in accordance
with 5 U.S.C. 552(a) and 1 CFR part 51. Copies
may be obtained at the Montana Board of Oil and
Gas Conservation, 2535 St. Johns Avenue, Bil-
lings, Montana, 59102. Copies may be inspected at
the Environmental Protection Agency, Region
VIII, 999 18th Street, Suite 500, Denver, Colo-
rado, 80202-2466, or at the Office of the Federal
Register, 800 North Capitol Street, NW, Suite 700,
Washington, D.C.
(1) Montana Statutory Requirements Applicable
to the Underground Injection Control Program,
August, 1996.
(2) Montana Regulatory Requirements Applica-
ble to the Underground Injection Control Program,
August, 1996.
(Jo) Memorandum of Agreement (MOA). (1) The
MOA between EPA Region VIII and the MBOGC
signed by the Acting EPA Regional Administrator
on June 9, 1996.
(2) Letter dated May 24, 1996, from the Admin-
istrator of the MBOGC and the attached adden-
dum (Addendum No. 1-96) to the MOA between
MBOGC and EPA Region VIII, signed by the
Acting EPA Regional Administrator on August 14,
1996.
(c) Statement of legal authority. (1) Letter from
the Montana Attorney General to the Regional Ad-
ministrator dated August 1, 1995.
(2) MBOGC independent counsel's certification
of Montana's UIC program for Class II wells
dated July 24, 1995.
(3) Letter dated March 8,1996, from MBOGC
independent counsel to USEPA, Region VIII;
"Re: EPA comments of November 29, 1995, on
Montana Class II primacy application.''
(4) Letter dated March 8, 1996, from the Ad-
ministrator of the MBOGC and the attached pro-
posed replacement language for the MOA; "Re:
Responses to EPA comments on Montana Class II
Primacy Application."
(d) Program Description. The Program Descrip-
tion and any other materials submitted as part of
the application or as supplemented thereto:
(1) Application and accompanying materials for
approval of Montana's UIC program for Class II
wells submitted by the Governor of Montana, Au-
gust 3, 1995.
(2) [Reserved]
[61 FR 58933, Nov. 19, 1996]
§147.1351 EPA-administered program.
(a) Contents. The UIC program in the State of
Montana for Class I, III, IV, and V wells, and for
all Classes of wells in Indian Country is adminis-
tered by EPA. This program consists of the UIC
program requirements of 40 CFR parts 124, 144,
146, 148, and any additional requirements set forth
in the remainder of this subpart. Injection well
owners and operators, and EPA shall comply with
these requirements.
(b) Effective dates. The effective date for the
UIC program on all lands in Montana, including
all Indian lands, is June 25, 1984.
[52 FR 17681, May 11, 1987, as amended at 56 FR 9417,
Mar. 6, 1991; 61 FR 58933, Nov. 19, 1996]
§ 147.1352 Aquifer exemptions.
Those portions of aquifers within one-quarter
mile of existing Class II wells are exempted for
the purpose of Class II injection activities only.
NOTE: A complete listing of the exemptions and their
location is available for review in the EPA Regional Of-
fice, 1860 Lincoln Street, Denver, Colorado. An updated
list of exemptions will be maintained in the Regional
Office.
§147.1353 Existing Class I, II (except
enhanced recovery hydrocarbon
storage) and III wells authorized by
rule.
Maximum injection pressure. The owner or op-
erator shall limit injection pressure to the lesser of:
(a) A value which will not exceed the operating
requirements of § 144.28(f)(3) (i) or (ii) as applica-
ble or
(b) A value for well head pressure calculated by
using the following formula:
Pm=(0.733 - 0.433 Sg)d
where
Pm=injection pressure at the well head in pounds per
square inch
Sg=specific gravity of inject fluid (unitless)
d=injection depth in feet.
§147.1354 Existing Class II enhanced
recovery and hydrocarbon storage
wells authorized by rule.
(a) Maximum injection pressure. (1) To meet
the operating requirements of § 144.28(f)(3)(ii) (A)
and (B) of this chapter, the owner or operator:
28
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Pt. 147, Subpt. BB, App. A
(i) Shall use an injection pressure no greater
than the pressure established by the Regional Ad-
ministrator for the field or formation in which the
well is located. The Regional Administrator shall
establish such a maximum pressure after notice,
opportunity for comment, and opportunity for a
public hearing, according to the provisions of part
124, subpart A of this chapter, and will inform
owners and operators in writing of the applicable
maximum pressure; or
(ii) May inject at pressures greater than those
specified in paragraph (a)(l)(i) of this section for
the field or formation in which he is operating
provided he submits a request in writing to the
Regional Administrator, and demonstrates to the
satisfaction of the Regional Administrator that
such injection pressure will not violate the require-
ment of § 144.28(f)(3)(ii) (A) and (B). The Re-
gional Administrator may grant such a request
after notice, opportunity for comment, and oppor-
tunity for a public hearing, according to the provi-
sions of part 124, subpart A of this chapter.
(2) Prior to such time as the Regional Adminis-
trator established rules for maximum injection
pressure based on data provided pursuant to para-
graph (ii) below the owner or operator shall:
(i) Limit injection pressure to a value which
will not exceed the operating requirements of
§ 144.28(f)(3)(ii); and
(ii) Submit data acceptable to the Regional Ad-
ministrator which defines the fracture pressure of
the formation in which injection is taking place. A
single test may be submitted on behalf of two or
more operators conducting operations in the same
formation, if the Regional Administrator approves
such submission. The data shall be submitted to
the Regional Administrator within 1 year of the
effective date of this program.
(b) Casing and cementing. Where the Regional
Administrator determines that the owner or opera-
tor of an existing enhanced recovery or hydro-
carbon storage well may not be in compliance
with the requirements of §§ 144.28(e) and 146.22,
the owner or operator shall when required by the
Regional Administrator:
(1) Isolate all USDWs by placing cement be-
tween the outermost casing and the well bore as
follows:
(i) If the injection well is east of the 108th me-
ridian, cement the outermost casing from a point
50 feet into a major shale formation underlying
the uppermost USDW to the surface. For the pur-
pose of this paragraph, major shale formations are
defined as the Bearpaw, Clagget, and Colorado
formations.
(ii) If the injection well is west of the 108th
meridian, cement the outermost casing to a depth
of 1,000 feet, or to the base of the lowermost
USDW in use as a source of drinking water
whichever is deeper. The Regional Administrator
may allow an owner or operator to cement to a
lesser depth if he can demonstrate to the satisfac-
tion of the Regional Administrator that no USDW
will be affected by the injection facilities.
(2) Isolate any injection zones by placing suffi-
cient cement to fill the calculated space between
the casing and the well bore to a point 250 feet
above the injection zone; and
(3) Use cement:
(i) Of sufficient quantity and quality to with-
stand the maximum operating pressure;
(ii) Which is resistant to deteriortion from for-
mation and injection fluids; and
(iii) In a quantity no less than 120% of the cal-
culated volume necessary to cement off a zone.
(4) The Regional Administrator may specify
other requirements in addition to or in lieu of the
requirements set forth in paragraphs (b) (1)
through (3) of this section, as needed to protect
USDWs.
§ 147.1355 Requirements for all wells.
(a) Area of review. Notwithstanding the alter-
natives presented in § 146.6 of this chapter, the
area of review shall be a fixed radius as described
in § 146.06(b) of this chapter.
(b) The applicant must give separate notice of
intent to apply for a permit to each owner or ten-
ant of the land within one-quarter mile of the site.
This requirement may be waived by the Regional
Administrator where individual notice to all land
owners and tenants would be impractical. The ad-
dresses of those to whom notice is given, and a
description of how notice was given, shall be sub-
mitted with the permit application. The notice
shall include:
(1) Name and address of applicant;
(2) A brief description of the planned injection
activities, including well location, name and depth
of the injection zone, maximum injection pressure
and volume, and fluid to be injected;
(3) EPA contact person; and
(4) A statement that opportunity to comment
will be announced after EPA prepares a draft per-
mit.
(c) Owners and operators on or within one-half
mile of Indian lands shall provide notice as speci-
fied in paragraph (b) of this section, except that
such notice shall be provided within a one-half
mile radius of the site.
APPENDIX A TO SUBPART BB OF PART 147—
STATE REQUIREMENTS INCORPORATED BY
REFERENCE IN SUBPART BB OF PART 147 OF
THE CODE OF FEDERAL REGULATIONS
The following is an informational listing of state
requirements incorporated by reference in Subpart
29
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Pt. 147, Subpt. BB, App. A
BB of part 147 of the Code of Federal Regula-
tions:
Sub pa it BB—Montana
(a) The statutory provisions include:
(1) Montana Code annotated, 1995, Title 2,
Chapter 15:
Section 2-15-121. Allocation for administrative
purposes only.
Section 2-15-124. Quasi-judicial boards.
Section 2-15-3303. Board of oil and gas con-
servation-composition—allocation—quasi-judicial.
(2) Montana Code annotated, 1995, Title 82,
Chapter 10:
Section 82-10-101. Action for accounting for
royalty.
Section 82-10-102. Remedy not exclusive.
Section 82-10-103. Obligation to pay royalties
as essence of contract-interest.
Section 82-10-104. Payment of royalties-form
of record required.
Section 82-10-105 through 82-10-109 re-
served.
Section 82-10-110. Division order-definition-ef-
fect.
Section 82-10-201. Authorization for lease and
terms-land not subject to leasing.
Section 82-10-202. Acreage pooling.
Section 82-10-203. Interference with normal
use of land prohibited.
Section 82-10-204. Lease of acquired oil and
gas interests.
Section 82-10-301. Definitions.
Section 82-10-302. Policy.
Section 82-10-303. Use of eminent domain to
acquire underground reservoirs.
Section 82-10-304. Certificate of board re-
quired prior to use of eminent domain.
Section 82-10-305. Proceedings.
Section 82-10-401. Notice required before
abandonment of well-owner's option.
Section 82-10-402. Inventory of abandoned
wells and seismic operations-reclamation proce-
dures.
Section 82-10-501. Purpose-legislative findings.
Section 82-10-502. Definitions.
Section 82-10-503. Notice of drilling oper-
ations.
Section 82-10-504. Surface damage and disrup-
tion payments-penalty for late payment.
Section 82-10-505. Liability for damages to
property.
Section 82-10-506. Notification of injury.
Section 82-10-0507. Agreement—offer of set-
tlement.
Section 82-10-508. Rejection—legal action.
Section 82-10-509 and 82-10-510. Reserved.
Section 82-10-511. Remedies cumulative.
(3) Montana Code annotated, 1995, Title 82,
Chapter 11:
Section 82-11-101. Definitions.
Section 82-11-102. Oil or gas wells not public
utilities.
Section 82-11-103. Lands subject to law.
Section 82-11-104. Construction-no conflict
with board of land commissioners' authority.
Section 82-11-105 through 82-11-110 re-
served.
Section 82-11-111. Powers and duties of board.
Section 82-11-112. Intergovernmental coopera-
tion.
Section 82-11-113. Role of board in implemen-
tation of national gas policy.
Section 82-11-114. Appointment of examiners.
Section 82-11-115. Procedure to make deter-
minations.
Section 82-11-116. Public access.
Section 82-11-117. Confidentiality of records.
Section 82-11-118. Fees for processing applica-
tions.
Section 82-11-119 through 82-11-120 re-
served.
Section 82-11-121. Oil and gas waste prohib-
ited.
Section 82-11-122. Notice of intention to drill
or conduct seismic operations-notice to surface
owner.
Section 82-11-123. Requirements for oil and
gas operations.
Section 82-11-124. Requirement relating to
waste prevention.
Section 82-11-125. Availability of cores or
chips, cuttings, and bottom-hole temperatures to
board.
Section 82-11-126. Availability of facilities to
bureau of mines.
Section 82-11-127. Prohibited activity.
Section 82-11-128 through 82-11-130 re-
served.
Section 82-11-131. Privilege and license tax.
Section 82-11-132. Statements to treasurer and
payment of tax.
Section 82-11-133. Penalty for late payment.
Section 82-11-134. Permit fees.
Section 82-11-135. Money earmarked for board
expenses.
Section 82-11-136. Expenditure of funds from
bonds for plugging wells.
Section 82-11-137. Class II injection well oper-
ating fee.
Section 82-11-138 through 82-11-140 re-
served.
Section 82-11-141. Administrative procedure.
Section 82-11-142. Subpoena power-civil ac-
tions.
Section 82-11-143. Rehearing.
Section 82-11-144. Court review.
30
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Pt. 147, Subpt. BB, App. A
Section 82-11-145. Injunction or restraining
order.
Section 82-11-146. Appeal.
Section 82-11-147. Violations.
Section 82-11-148. Criminal penalties.
Section 82-11-149. Civil penalties.
Section 82-11-150. Legal assistance.
Section 82-11-151. Emergencies-notice and
hearing.
Section 82-11-152 through 82-11-160 re-
served.
Section 82-11-161. Oil and gas production
damage mitigation account-statutory appropriation.
Section 82-11-162. Release of producing oil or
gas well from drilling bond-fee.
Section 82-11-163. Landowner's bond on non-
commercial well.
Section 82-11-164. Lien created.
Section 82-11-165 through 82-11-170 re-
served.
Section 82-11-171. Terminated.
Section 82-11-201. Establishment of well spac-
ing units.
Section 82-11-202. Pooling of interest within
spacing unit.
Section 82-11-203. Pooling agreements not in
violation of antitrust laws.
Section 82-11-204. Hearing on operation of
pool as unit.
Section 82-11-205. Board order for unit oper-
ation-criteria.
Section 82-11-206. Terms and conditions of
plan for unit operations.
Section 82-11-207. Approval of plan for unit
operations by persons paying costs.
Section 82-11-208. Board orders-amendment.
Section 82-11-209. Units established by pre-
vious order.
Section 82-11-210. Unit operations-less than
whole of pool.
Section 82-11-211. Operations considered as
done by all owners in unit.
Section 82-11-212. Property rights and opera-
tor's lien.
Section 82-11-213. Contract not terminated by
board order.
Section 82-11-214. Title to oil and gas rights
not affected by board order.
Section 82-11-215. Unit operation not restraint
of trade.
Section 82-11-216. No creation of relationship
between parties in unit.
Section 82-11-301. Authorization to join inter-
state compact for conservation of oil and gas.
Section 82-11-302. Interstate oil and gas com-
pact.
Section 82-11-303. Extension of expiration
date.
Section 82-11-304. Governor as member of
Interstate Oil Compact Commission.
Section 82-11-305. Limitation on power of rep-
resentative.
Section 82-11-306. Expenses of representative.
(b) The regulatory provisions include: Adminis-
trative Rules of Montana Board of Oil and Gas
Conservation, Chapter 22, revised March 1996:
Rule 36.22.101. Organizational Rule.
Rule 36.22.201. Procedural Rules.
Rule 36.22.202. Environmental Policy Act Pro-
cedural Rules.
Rule 36.22.301. Effective Scope of Rules.
Rule 36.22.302. Definitions.
Rule 36.22.303. Classification of Wildcat or Ex-
ploratory Wells.
Rule 36 22.304. Inspection of Record, Prop-
erties, and Wells.
Rule 36.22.305. Naming of Pools.
Rule 36.22.306. Organization of Reports.
Rule 36.22.307. Adoption of Forms.
Rule 36.22.308. Seal of Board.
Rule 36.22.309. Referral of Administrative De-
cisions.
Rule 36.22.401. Office and Duties of Petroleum
Engineer.
Rule 36.22.402. Office and Duties of Adminis-
trator.
Rule 36.22.403. Office and Duties of Geologist.
Rule 36.22.501. Shot Location Limitations.
Rule 36.22.502. Plugging and Abandonment.
Rule 36.22.503. Notification.
Rule 36.22.504. Identification.
Rule 36.22.601. Notice of Intention and Permit
to Drill.
Rule 36.22.602. Notice of Intention to Drill and
Application for Permit to Drill.
Rule 36.22.603. Permit Fees.
Rule 36.22.604. Permit Issuance - Expiration -
Extension.
Rule 36.22.605. Transfer of Permits.
Rule 36.22.606. Notice and Eligibility Statement
for Drilling or Recompletion in Unit Operations.
Rule 36.22.607. Drilling Permits Pending Spe-
cial Field Rules.
Rule 36.22.701. Spacing Units - General.
Rule 36.22.702. Spacing of Wells.
Rule 36.22.703. Horizontal Wells.
Rule 36.22.1001. Rotary Drilling Procedure.
Rule 36.22.1002. Cable Drilling Procedure.
Rule 36.22.1003. Vertical Drilling Required De-
viation.
Rule 36.22.1004. Dual Completion of Wells.
Rule 36.22.1005. Drilling Waste Disposal and
Surface Restoration.
Rules 36.22.1006 through 36.22.1010. Reserved.
Rule 36.22.1011. Well Completion and Re-
completion Reports.
Rule 36.22.1012. Samples of Cores and
Cuttings.
Rule 36.22.1013. Filing of Completion Reports,
Well Logs, Analyses, Reports, and Surveys.
31
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Pt. 147, Subpt. BB, App. A
Rule 36.22.1014. Blowout Prevention and Well
Control Equipment.
Rule 36.22.1101. Fire Hazard Prevention.
Rule 36.22.1102. Fire Walls Required.
Rule 36.22.1103. Notification and Report of
Emergencies and Undesirable Incidents.
Rule 36.22.1104. Control and Cleanup.
Rule 36.22.1105. Solid Waste.
Rule 36.22.1201. Surface Equipment.
Rule 36.22.1202. Identification.
Rule 36.22.1203. Chokes Required.
Rule 36.22.1204. Separators Required.
Rule 36.22.1205. Vacuum Pumps Prohibited.
Rule 36.22.1206. Tubing Required.
Rule 36.22.1207. Earthen Pits and Open Ves-
sels.
Rule 36.22.1208. Producing from Different
Pools Through the Same Casing.
Rules 36.22.1209 through 36.22.1212. Reserved.
Rule 36.22.1213. Reservoir or Pool Surveys.
Rule 36.22.1214. Subsurface Pressure Tests.
Rule 36.22.1215. Stabilized Production Test.
Rule 36.22.1216. Gas Oil Ratio Tests.
Rule 36.22.1217. Water Production Report.
Rule 36.22.1218. Gas to be Metered.
Rule 36.22.1219. Gas Waste Prohibited.
Rule 36.22.1220. Associated Gas Flaring Limi-
tation—Application to exceed—Board Review and
Action.
Rule 36.22.1221. Burning of Waste Gas Re-
quired.
Rule 36.22.1222. Hydrogen Sulfide Gas.
Rule 36.22.1223. Fencing, Screening, and Net-
ting of Pits.
Rules 36.22.1224 and 36.22.1425. Reserved.
Rule 36.22.1226. Disposal of Water.
Rule 36.22.1227. Earthen Pits and Ponds.
Rule 36.22.1228. Disposal by Injection.
Rule 36.22.1229. Water Injection and Gas Re-
pressuring.
Rule 36.22.1230. Application Contents and Re-
quirements.
Rule 36.22.1231. Notice of Application Objec-
tions.
Rule 36.22.1232. Board Authorization.
Rule 36.22.1233. Notice of Commencement or
Discontinuance—Plugging of Abandoned Wells.
Rule 36.22.1234. Record Required.
Rules 36.22.1235 through 36.22.1239. Reserved.
Rule 36.22.1240. Report of Well Status Change.
Rule 36.22.1241. Service Company Reports.
Rule 36.22.1242. Reports by Producers.
Rule 36.22.1243. Reports from Transporters,
Refiners, and Gasoline or Extraction Plants.
Rule 36.22.1244. Producer's Certificate of Com-
pliance.
Rule 36.22.1245. Illegal Production.
Rule 36.22.1301. Notice and Approval of Inten-
tion to Abandon Report.
Rule 36.22.1302. Notice of Abandonment.
Rule 36.22.1303. Well Plugging Requirement.
Rule 36.22.1304. Plugging Methods and Proce-
dure.
Rule 36.22.1305. Exception for Fresh Water
Wells.
Rule 36.22.1306. Approval for Pulling Casing
and Reentering Wells.
Rule 36.22.1307. Restoration of Surface.
Rule 36.22.1308. Plugging and Restoration
Bond.
Rule 36.22.1309. Subsequent Report of Aban-
donment.
Rule 36.22.1401. Definitions.
Rule 36.22.1402. Underground Injection.
Rule 36.22.1403. Application Contents and Re-
quirements Rules.
Rule 36.22.1404 and 36.22.1405. Reserved.
Rule 36.22.1406. Corrective Action.
Rule 36.22.1407. Signing the Application.
Rule 36.22.1408. Financial Responsibility.
Rule 36.22.1409. Hearings.
Rule 36.22.1410. Notice of Application.
Rule 36.22.1411. Board Authorization.
Rules 36.22.1412 and 36.22.1413. Reserved.
Rule 36.22.1414. Notice of Commencement or
Discontinuance—Plugging of Abandoned Wells.
Rule 36.22.1415. Records Required.
Rule 36.22.1416. Mechanical Integrity.
Rule 36.22.1417. Notification of Tests—Report-
ing Results.
Rule 36.22.1418. Exempt Aquifers.
Rule 36.22.1419. Tubingless Completions.
Rules 36.22.1420 and 36.22.1421. Reserved.
Rule 36.22.1422. Permit Conditions.
Rule 36.22.1423. Injection Fee—Well Classi-
fication.
Rule 36.22.1601. Who May Apply for Deter-
mination.
Rule 36.22.1602. Application Requirements and
Contents.
Rule 36.22.1603. Documents and Technical
Data Supporting Application.
Rule 36.22.1604. Docket Number.
Rule 36.22.1605. List of Applications—Public
Access.
Rule 36.22.1606. Objections to Applications.
Rule 36.22.1607. Deadlines for Action Deter-
minations.
Rule 36.22.1608. Deficient Applications.
Rule 36.22.1609. Board Action on Applications.
Rule 36.22.1610. Special Findings and Deter-
minations New Onshore Production Wells Under
Section 103.
Rule 36.22.1611. Special Findings and Deter-
minations Stripper Well Production.
[61 FR 58934, Nov. 19, 1996]
32
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§147.1401
Sub pa it CC—Nebraska
§147.1400 State-administered pro-
gram—Class II wells.
The UIC program for Class II wells in the State
of Nebraska, except those on Indian lands, is the
program administered by the Nebraska Oil and
Gas Conservation Commission, approved by EPA
pursuant to section 1425 of the SDWA.
(a) Incorporation by reference. The
requirements set forth in the State statutes and reg-
ulations cited in this paragraph are hereby incor-
porated by reference and made a part of the appli-
cable UIC program under the SDWA for the State
of Nebraska. This incorporation by reference was
approved by the Director of the Federal Register
on June 25, 1984.
(1) Rules and Regulations of the Nebraska Oil
and Gas Conservation Commission, Rules 1
through 6 (as published by the Commission, May
1981);
(2) Revised Statutes of Nebraska, sections 57-
903 and 57-906 (Reissue 1988).
(b) Other laws. The following statutes and regu-
lations, although not incorporated by reference ex-
cept for select sections identified in paragraph (a)
of this section, are also part of the approved state-
administered program:
(1) Chapter 57, Oil and Gas Conservation, Re-
vised Statutes of Nebraska sections 57-901
through 57-922 (Reissue 1985).
(c) The Memorandum of Agreement between
EPA Region VII and the Nebraska Oil and Gas
Conservation Commission, signed by the EPA Re-
gional Administrator on July 12, 1982.
(d) Statement of legal authority. (1) "Nebraska
Underground Injection Control Program, Attorney
General's Statement for Class II Wells," signed
by Assistant Attorney General for Attorney Gen-
eral of Nebraska, as submitted with "State of Ne-
braska Request for Administration of UIC Pro-
gram," January 23, 1982;
(2) "Re: Nebraska Underground Injection Con-
trol Program, Addendum to Attorney General's
Statement for Class II Wells," signed by Assistant
Attorney General for Attorney General of Ne-
braska," undated.
(e) The Program Description and any other ma-
terials submitted as part of the application or as
supplements thereto.
[49 FR 20197, May 11, 1984, as amended at 52 FR
17681, May 11, 1987; 56 FR 9417, Mar. 6, 1991]
§147.1401 State administered pro-
gram—Class I, III, IV and V wells.
The UIC program for Class I, III, IV, and V
wells in the State of Nebraska, except those on In-
dian lands, is the program administered by the Ne-
braska Department of Environmental Control, ap-
proved by EPA pursuant to section 1422 of the
SDWA.
(a) Incorporation by reference. The require-
ments set forth in the State statutes and regulations
cited in this paragraph are hereby incorporated by
reference and made a part of the applicable UIC
program under the SDWA for the State of Ne-
braska. This incorporation by reference was ap-
proved by the Director of the Federal Register ef-
fective June 26, 1984.
(1) Nebraska Environmental Protection Act, Re-
vised Statutes of Nebraska sections 81-1502, 81-
1506, 81-1519, and 81-1520 (Reissue 1987);
(2) Nebraska Department of Environmental
Control, Title 122—Rules and Regulations for Un-
derground Injection and Mineral Production Wells,
Effective Date: February 16, 1982, Amended
Dates: November 12, 1983, March 22, 1984; as
amended by amendment approved by the Gov-
ernor on January 2, 1989.
(b) Other laws. The following statutes and regu-
lations although not incorporated by reference,
also are part of the approved State-administered
program:
(1) Nebraska Environmental Protection Act, Ne-
braska Revised Statutes sections 81-1502, 81-
1506, 81-1519, and 81-1520 (Reissue 1987 and
Cumm. Supp. 1988);
(c)(l) The Memorandum of Agreement between
EPA Region VII and the Nebraska Department of
Environmental Control, signed by the EPA Re-
gional Administrator on July 12, 1982.
(2) Addendum to Underground Injection Control
Memorandum of Agreement signed by the EPA
Regional Administrator on July 12, 1982.
(3) Amendments to the Memorandum of Agree-
ment signed by the EPA Regional Administrator
on November 22, 1983.
(d) Statement of legal authority. (1) "Nebraska
Underground Injection Control Program, Attorney
General's Statement for Class I, III, IV, and V
Wells", signed by Assistant Attorney General for
Attorney General of Nebraska, as submitted with
"State of Nebraska Request for Administration of
UIC Program, January 28, 1982;
(2) Letter from Attorney General (of Nebraska),
by Assistant Attorney General, to Director, (Ne-
braska) Department of Environmental Control, Au-
gust 7, 1981;
(3) Letter from Attorney General (of Nebraska),
by Assistant Attorney General, to Director, (Ne-
braska) Department of Environmental Control,
April 29, 1982;
(4) Letter from Attorney General (of Nebraska),
by Assistant Attorney General, to Legal Counsel,
(Nebraska) Department of Environmental Control,
October 18, 1983.
33
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§147.1403
(e) The Program Description and any other ma-
terials submitted as part of the original application
or as supplements thereto.
(42 U.S.C. 1422)
[49 FR 24134, June 12, 1984, as amended at 52 FR
17681, May 11, 1987; 56 FR 9417, Mar. 6, 1991]
§147.1402 Aquifer exemptions. [Re-
served]
§147.1403 EPA-administered pro-
gram—Indian lands.
(a) Contents. The UIC program for all classes of
wells on Indian lands in the State of Nebraska is
administered by EPA. This program consists of the
UIC program requirements of 40 CFR parts 124,
144, 146, 148, and any additional requirements set
forth in the remainder of this subpart. Injection
well owners and operators, and EPA shall comply
with these requirements.
(b) Effective date. The effective date of the UIC
program for Indian Lands in Nebraska is June 25,
1984.
[52 FR 17681, May 11, 1987, as amended at 56 FR 9417,
Mar. 6, 1991]
Subpart DD—Nevada
§147.1450 State-administered pro-
gram.
The UIC program for all classes of underground
injection wells in the State of Nevada, other than
those on Indian lands, is the program administered
by the Nevada Division of Environmental Protec-
tion approved by EPA pursuant to section 1422 of
the SDWA. Notice of this approval was published
in the FEDERAL REGISTER on February 18, 1988;
the effective date of this program is October 5,
1988. This program consists of the following ele-
ments, as submitted to EPA in the State's program
application.
(a) Incorporation by reference. The
requirements set forth in the State statutes and reg-
ulations cited in this paragraph are hereby incor-
porated by reference and made a part of the appli-
cable UIC program under the SDWA for the State
of Nevada. This incorporation by reference was
approved by the Director of the Federal Register
in accordance with 5 U.S.C. 552(a) and 1 CFR
part 51. Copies may be obtained at the Nevada
Department of Conservation and Natural Re-
sources, Division of Environmental Protection, 201
South Fall Street, Carson City, Nevada 89710.
Copies may be inspected at the Environmental
Protection Agency, Region IX, 215 Fremont
Street, San Francisco, California 99105, or at the
Office of the Federal Register, 800 North Capitol
Street NW., suite 700, Washington, DC.
(1) Nevada Revised Statutes [NRS], Volume 25,
Chapters 445.131 through 445.354, Inclusive.
1987.
(2) Nevada Revised Statutes [NRS], Volume 29,
Chapters 534A.010 through 534A.090, Inclusive.
1987.
(3) Nevada Revised Statutes [NRS], Volume 28,
Chapters 522.010 through 522.190, Inclusive.
1987.
(4) Nevada Administrative Code [NAC], Under-
ground Injection Control Regulations, Sections 1
through 96.1, Inclusive. July 22, 1987, revised
September 3, 1987 (amending NAC Chapter 445).
(5) Nevada Administrative Code [NAC], Regu-
lations and Rules of Practice and Procedure adopt-
ed Pursuant to NRS 534A, Sections 1 through 69,
Inclusive. November 12, 1985 (amending NAC
Chapter 534A).
(6) Nevada Administrative Code [NAC], Regu-
lations and Rules of Practice and Procedure adopt-
ed Pursuant to NRS 522.010 through 522.625, In-
clusive. July 22, 1987 (amending NAC Chapter
522).
(b) The Memorandum of Agreement between
EPA Region 9 and the Nevada Department of
Conservation and Natural Resources signed by the
EPA Regional Administrator on April 6, 1988.
(c) Statement of Legal Authority. Statement and
Amendment to the Statement from the Attorney
General of the State of Nevada, signed on July 22,
1987 and November 6, 1987 respectively, by the
Deputy Attorney General.
(d) The Program Description and any other ma-
terials submitted as part of the original application
or as supplements thereto.
[53 FR 39089, Oct. 5, 1988]
§147.1451 EPA administered pro-
gram—Indian lands.
(a) Contents. The UIC program for all classes of
wells on Indian lands in the State of Nevada is ad-
ministered by EPA. This program consists of the
UIC program requirements of 40 CFR parts 124,
144, 146, 148, and any additional requirements set
forth in the remainder of this subpart. Injection
well owners and operators, and EPA shall comply
with these requirements.
(b) Effective dates. The effective date of the
UIC program for Indian lands in Nevada is June
25, 1984.
[53 FR 43088, Oct. 25, 1988, as amended at 56 FR 9417,
Mar. 6, 1991]
34
-------
§147.1500
§147.1452 Aquifer
served]
exemptions. [Re-
§147.1453 Existing Class I, II (except
enhanced recovery and hydro-
carbon storage) and III wells au-
thorized by rule.
Maximum injection pressure. The owner or op-
erator shall limit injection pressure to the lesser of:
(a) A value which will not exceed the operating
requirements of § 144.28(f)(3) (i) or (ii) as applica-
ble; or
(b) A value for well head pressure calculated by
using the formula:
Pm=(0.733-0.433 Sg)d
where
Pm=injection pressure at the wellhead in pounds per
square inch
Sg=specific gravity of injected fluid (unitless)
d=injection depth in feet.
§147.1454 Existing Class II enhanced
recovery and hydrocarbon storage
wells authorized by rule.
(a) Maximum injection pressure. (1) To meet
the operating requirements of § 144.28(f)(3)(ii) (A)
and (B) of this chapter, the owner or operator:
(i) Shall use an injection pressure no greater
than the pressure established by the Regional Ad-
ministrator for the field or formation in which the
well is located. The Regional Administrator shall
establish such a maximum pressure after notice,
opportunity for comment, and opportunity for a
public hearing, according to the provisions of part
124, subpart A of this chapter, and will inform
owners and operators in writing of the applicable
maximum pressure; or
(ii) May inject at pressures greater than those
specified in paragraph (a)(l)(i) of this section for
the field or formation in which he is operating
provided he submits a request in writing to the
Regional Administrator, and demonstrates to the
satisfaction of the Regional Administrator that
such injection pressure will not violate the require-
ment of § 144.28(f)(3)(ii) (A) and (B). The Re-
gional Administrator may grant such a request
after notice, opportunity for comment, and oppor-
tunity for public hearing, according to the provi-
sions of part 124, subpart A of this chapter.
(2) Prior to such time as the Regional Adminis-
trator establishes field rules for maximum injection
pressure based on data provided pursuant to para-
graph (a)(2)(ii) of this section the owner or opera-
tor shall:
(i) Limit injection pressure to a value which
will not exceed the operating requirements of
§ 144.28(f)(3)(ii); and
(ii) Submit data acceptable to the Regional Ad-
ministrator which defines the fracture pressure of
the formation in which injection is taking place. A
single test may be submitted on behalf of two or
more operators conducting operations in the same
formation, if the Regional Administrator approves
such submission. The data shall be submitted to
the Regional Administrator within one year fol-
lowing the effective date of this program.
(b) Casing and cementing. Where the Regional
Administrator determines that the owner or opera-
tor of an existing enhanced recovery or hydro-
carbon storage well may not be in compliance
with the requirements of §§ 144.28(e) and 146.22,
the owner or operator shall comply with para-
graphs (b) (1) through (4) of this section, when re-
quired by the Regional Administrator:
(1) Protect USDWs by:
(i) Cementing surface casing by recirculating
the cement to the surface from a point 50 feet
below the lowermost USDW; or
(ii) Isolating all USDWs by placing cement be-
tween the outermost casing and the well bore; and
(2) Isolate any injection zones by placing suffi-
cient cement to fill the calculated space between
the casing and the well bore to a point 250 feet
above the injection zone; and
(3) Use cement:
(i) Of sufficient quantity and quality to with-
stand the maximum operating pressure;
(ii) Which is resistant to deterioration from for-
mation and injection fluids; and
(iii) In a quantity no less than 120% of the cal-
culated volume necessary to cement off a zone.
(4) The Regional Administrator may specify
other requirements in addition to or in lieu of the
requirements set forth in paragraphs (b) (1)
through (3) of this section, as needed to protect
USDWs.
Subpart EE—New Hampshire
§147.1500 State-administered pro-
gram.
The UIC program for all classes of wells in the
State of New Hampshire, except those wells on In-
dian lands, is the program administered by the
New Hampshire Department of Environmental
Services, approved by the EPA pursuant to section
1422 of the SOW A. Notice of this approval was
published in the FR on September 21, 1982 (47
FR 41561); the effective date of this program is
October 21, 1982. This program consists of the
following elements:
(a) Incorporation by reference. The require-
ments set forth in the State statutes and regulations
cited in this paragraph are hereby incorporated by
reference and made a part of the applicable UIC
program under the SDWA for the State of New
Hampshire. This incorporation by reference was
35
-------
§147.1501
approved by the Director of the Federal Register
on June 25, 1984.
(1) New Hampshire Revised Statutes Annotated
section 149:8 III(a) (1978);
(2) New Hampshire Code of Administrative
Rules, Part We 410 (Protection of Groundwaters
of the State, sections Ws 410.1 through Ws
410.16) (Issue Ws 3-82).
(b)(l) The Memorandum of Agreement between
EPA Region I and the New Hampshire Water
Supply and Pollution Control Commission, signed
by the EPA Regional Administrator on August 23,
1982;
(2) Amendment No. 1 to the Memorandum of
Agreement, signed by the EPA Regional Adminis-
trator on July 16, 1982.
(c) Statement of legal authority. (1) Letter from
Attorney General of New Hampshire to Regional
Administrator, EPA Region I, "Re: Attorney Gen-
eral's Statement—Underground Injection Control
Program," March 23, 1982;
(2) Letter from Attorney General of New
Hampshire to Regional Administrator, EPA Re-
gion I, "Re: Attorney General's Statement—Un-
derground Injection Control Program," July 1,
1982.
(d) The Program Description and any other ma-
terials submitted as part of the application or as
supplements thereto.
[49 FR 20197, May 11, 1984, as amended at 53 FR
43088, Oct. 25, 1988; 56 FR 9417, Mar. 6, 1991]
§147.1501 EPA-administered pro-
gram—Indian lands.
(a) Contents. The UIC program for all classes of
wells on Indian lands in the State of New Hamp-
shire is administered by EPA. This program con-
sists of the UIC program requirements of 40 CFR
parts 124, 144, 146, 148, and any additional re-
quirements set forth in the remainder of this sub-
part. Injection well owners and operators, and
EPA shall comply with these requirements.
(b) Effective date. The effective date of the UIC
program for Indian lands in New Hampshire is
November 25, 1988.
[53 FR 43088, Oct. 25, 1988, as amended at 56 FR 9417,
Mar. 6, 1991]
Subpart FF—New Jersey
§147.1550 State-administered pro-
gram.
The UIC program for all classes of wells in the
State of New Jersey, except those on Indian lands,
is the program administered by the New Jersey
Department of Environmental Protection, approved
by EPA pursuant to section 1422 of the SOW A.
Notice of this approval was published in the Fed-
eral Register on July 15, 1983 (48 FR 32343); the
effective date of this program is August 15, 1983.
This program consists of the following elements,
as submitted to EPA in the State's program appli-
cation.
(a) Incorporation by reference. The require-
ments set forth in the State statutes and regulations
cited in this paragraph are hereby incorporated by
reference and made a part of the applicable UIC
program under the SDWA for the State of New
Jersey. This incorporation by reference was ap-
proved by the Director of the Federal Register on
June 25, 1984.
(1) Water Pollution Control Act, New Jersey
Statutes Annotated sections 58:10A-1 through
58:10A-20 (West 1982 and Supp. 1990);
(2) New Jersey Administrative Code, sections
7:14A-1.1 through 1.9 (subchapter 1), 7:14A-2.1
through 2.15 (subchapter 2), 7:14A-5.1 through
5.17, (subchapter 5) (amended March 1988).
(b)(l) The Memorandum Agreement between
EPA Region II and the New Jersey Department of
Environmental Protection, signed by the EPA Re-
gional Administrator on September 9, 1982;
(2) Letter from Commissioner, New Jersey De-
partment of Environmental Protection, to Regional
Administrator, EPA Region II, March 21, 1983.
(c) Statement of legal authority. (1) Letter from
Attorney General of New Jersey (by Deputy Attor-
ney General) to Commissioner, Department of En-
vironmental Protection, "Re: New Jersey Pollutant
Discharge Elimination System—Underground In-
jection Control," February 9, 1982;
(2) Letter from Attorney General of New Jersey
(by Deputy Attorney General) to Commissioner,
Department of Environmental Protection, "Re:
New Jersey Pollutant Discharge Elimination Sys-
tem—Underground Injection Control," April 15,
1983 (six pages);
(3) Letter from Attorney General of New Jersey
(by Assistant Attorney General) to Commissioner,
Department of Environmental Protection, "Re:
New Jersey Pollutant Discharge Elimination Sys-
tem—Underground Injection Control," April 15,
1983 (two pages).
(d) The Program Description and any other ma-
terials submitted as part of the application or as
supplements thereto.
[49 FR 20197, May 11, 1984, as amended at 53 FR
43089, Oct. 25, 1988; 56 FR 9417, Mar. 6, 1991]
§147.1551 EPA-administered pro-
gram—Indian lands.
(a) Contents. The UIC program for all classes of
wells on Indian lands in the State of New Jersey
is administered by EPA. This program consists of
the UIC program requirements of 40 CFR parts
124, 144, 146, 148, and any additional require-
ments set forth in the remainder of this subpart.
36
-------
§147.1601
Injection well owners and operators, and EPA
shall comply with these requirements.
(b) Effective date. The effective date of the UIC
program for Indian lands in New Jersey is Novem-
ber 25, 1988.
[53 FR 43089, Oct. 25, 1988, as amended at 56 FR 9417,
Mar. 6, 1991]
Subpart GG—New Mexico
§147.1600 State-administered pro-
gram—Class II wells.
The UIC program for Class II wells in the State
of New Mexico, except for those on Indian lands,
is the program administered by the New Mexico
Energy and Minerals Department, Oil Conserva-
tion Division, approved by EPA pursuant to sec-
tion 1425 of the SOW A. Notice of this approval
was published in the FEDERAL REGISTER on Feb-
ruary 5, 1982 (47 FR 5412); the effective date of
this program is March 7, 1982. This program con-
sists of the following elements as submitted to
EPA in the State's program application:
(a) Incorporation by reference. The require-
ments set forth in the State statutes and regulations
cited in this paragraph are hereby incorporated by
reference and made a part of the applicable UIC
program under the SDWA for the State of New
Mexico. This incorporation by reference was ap-
proved by the Director of the Federal Register on
June 25, 1984.
(1) Oil and Gas Act, New Mexico Statutes An-
notated sections 70-2-1 through -36 (1978);
(2) State of New Mexico Energy and Mineral
Department, Oil Conservation Division—Rules
and Regulations (dated 10-1-78), sections B-3, I-
701 through 1-708, M-1100 through M-1121.
(b)(l) The Memorandum of Agreement between
EPA Region VI and the New Mexico Energy and
Minerals Department, Oil Conservation Division,
signed by the EPA Regional Administrator on De-
cember 10, 1981;
(2) Addendum No. 1 to the Memorandum of
Agreement, signed by the EPA Regional Adminis-
trator on June 28, 1982;
(3) Addendum No. 2 to the Memorandum of
Agreement, signed by the EPA Regional Adminis-
trator on November 18, 1982;
(4) Letter from Director, Oil Conservation Divi-
sion, New Mexico Energy and Minerals Depart-
ment, and Assistant Attorney General of New
Mexico, to Regional Administrator, EPA Region
VI, November 6, 1981.
(c) Statement of legal authority. "Statement of
Legal Authority of the State of New Mexico by
and through its Oil Conservation Division of the
Energy and Mines Department to conduct an Un-
derground Injection Control Program," signed by
Assistant Attorney General and General Counsel
to the Oil Conservation Division.
(d) The Program Description and any other ma-
terials submitted as part of the application or as
supplements thereto.
[49 FR 20197, May 11, 1984, as amended at 53 FR
43089, Oct. 25, 1988]
§147.1601 State-administered pro-
gram—Class I, III, IV and V wells.
The UIC program for Class I, III, IV and V in-
jection wells in the State of New Mexico, except
for those on Indian lands, is the program adminis-
tered by the New Mexico Water Quality Control
Commission, the Environmental Improvement Di-
vision, and the Oil Conservation Division, ap-
proved by EPA pursuant to section 1422 of the
SDWA. Notice of this approval was published in
the FEDERAL REGISTER on July 11, 1983 (48 FR
31640); the effective date of this program is Au-
gust 10, 1983. This program consists of the fol-
lowing elements, as submitted to EPA in the
State's program application:
(a) Incorporation by reference. The require-
ments set forth in the State statutes and regulations
cited in this paragraph are hereby incorporated by
reference and made a part of the applicable UIC
program under the SDWA for the State of New
Mexico. This incorporation by reference was ap-
proved by the Director of the Federal Register on
June 25, 1984.
(1) New Mexico Water Quality Control Com-
mission Regulations (WQCC 82-1) sections 1-100
through 5-300 (September 20, 1982).
(b) Other laws. The following statutes and regu-
lations, although not incorporated by reference, are
also part of the approved State-administered UIC
program:
(1) Water Quality Act, New Mexico Statutes
Annotated sections 74-6-1 through 74-6-13 (1978
and Supp. 1982);
(2) Geothermal Resources Conservation Act,
New Mexico Statutes Annotated sections 71-5-1
through 71-5-24 (1978 and Supp. 1982);
(3) Surface Mining Act, New Mexico Statutes
Annotated sections 69-25A-1 through 69-25A-35
(1978 and Supp. 1980).
(c)(l) The Memorandum of Agreement between
EPA Region VI and the New Mexico Water Qual-
ity Control Commission, the Environmental Im-
provement Division, and the Oil Conservation Di-
vision, signed by the EPA Regional Administrator
on April 13, 1983;
(2) Letter from the Director, Environmental Im-
provement Division and the Director, Oil Con-
servation Division, to Regional Administrator,
EPA Region IV, "Re: New Mexico Underground
Injection Control Program—Clarification," Feb-
ruary 10, 1983.
37
-------
§147.1603
(d) Statement of legal authority. "Attorney Gen-
eral's Statement," signed by the Assistant Attor-
ney General for the Environmental Improvement
Division, the Assistant Attorney General for Oil
Conservation Division, and the Deputy Attorney
General, Civil Division, Counsel for the Mining
and Minerals Division, undated, submitted Decem-
ber 8, 1982.
(e) The Program Description and any other ma-
terials submitted as part of the application or as
supplements thereto.
[49 FR 20197, May 11, 1984, as amended at 53 FR
43089, Oct. 25, 1988]
§147.1603 EPA-administered pro-
gram—Indian lands.
(a) Contents. The UIC program for all classes of
wells on Indian lands in New Mexico is adminis-
tered by EPA. The program consists of the re-
quirements set forth at Subpart HHH of this part.
Injection well owners and operators and EPA shall
comply with these requirements.
(b) Effective date. The effective date for the
UIC program on Indian lands in New Mexico is
November 25, 1988.
[53 FR 43089, Oct. 25, 1988]
Subpart HH—New York
§147.1650 State-administered
gram. [Reserved]
pro-
§147.1651 EPA-administered program.
(a) Contents. The UIC program for the State of
New York, including all Indian lands, is adminis-
tered by EPA. The program consists of the UIC
program requirements of 40 CFR parts 124, 144,
146, 148, and any additional requirements set forth
in the remainder of this subpart. Injection well
owners and operators, and EPA shall comply with
these requirements.
(b) Effective dates. The effective date of the
UIC program for New York for all injection ac-
tivities except those on lands of the Seneca Indian
Tribe is June 25, 1984. The effective date for the
UIC program for the lands of the Seneca Indian
Tribe is November 25, 1988.
[53 FR 43089, Oct. 25, 1988; 54 FR 10616, Mar. 14,
1989, as amended at 56 FR 9417, Mar. 6, 1991]
§147.1652 Aquifer exemptions.
(a) This section identifies any aquifer or their
portions exempted in accordance with §§ 144.7(b)
and 146.4 of this chapter at the time of program
promulgation. EPA may in the future exempt other
aquifers or portions, according to applicable proce-
dures, without codifying such exemptions in this
section. An updated list of exemptions will be
maintained in the Regional office.
(b) The following portions of aquifers are ex-
empted in accordance with the provisions of
§§ 144.7(b) and 146.4 of this chapter for Class II
injection activities only:
(1) The Bradford First, Second, and Third Sand
Members and the Kane Sand Member in the Brad-
ford Field in Cattaraugus County.
(2) The Chipmunk Oil field in Cattaraugus
County.
§147.1653 Existing Class I, II (except
enhanced recovery and hydro-
carbon storage) and III wells au-
thorized by rule.
Maximum injection pressure. The owner or op-
erator shall limit injection pressure to the lesser of:
(a) A value which will not exceed the operating
requirements of § 144.28(f)(3) (i) or (ii) as applica-
ble; or
(b) A value for well head pressure calculated by
using the following formula:
Pm=(0.733-0.433 Sg)d
where
Pm=injection pressure at the well head in pounds per
square inch
Sg=specific gravity of inject fluid (unitless)
d=injection depth in feet.
§147.1654 Existing Class II enhanced
recovery and hydrocarbon storage
wells authorized by rule.
(a) Maximum injection pressure. (1) To meet
the operating requirements of § 144.28(f)(3)(ii) (A)
and (B) of this chapter, the owner or operator:
(i) Shall use an injection pressure no greater
than the pressure established by the Regional Ad-
ministrator for the field or formation in which the
well is located. The Regional Administrator shall
establish such a maximum pressure after notice,
opportunity for comment, and opportunity for a
public hearing, according to the provisions of part
124, subpart A of this chapter, and will inform
owners and operators in writing of the applicable
maximum pressure, or
(ii) May inject at pressures greater than those
specified in paragraph (a)(l)(i) of this section for
the field or formation in which he is operating
provided he submits a request in writing to the
Regional Administrator, and demonstrates to the
satisfaction of the Regional Administrator that
such injection pressure will not violate the require-
ment of § 144.28(f)(3)(ii) (A) and (B). The Re-
gional Administrator may grant such a request
after notice, opportunity for comment, and oppor-
tunity for a public hearing, according to the provi-
sions of part 124, subpart A of this chapter.
38
-------
§147.1700
(2) Prior to such time as the Regional Adminis-
trator establishes rules for maximum injection
pressure based on data provided pursuant to para-
graph (a)(2)(ii) of this section the owner or opera-
tor shall:
(i) Limit injection pressure to a value which
will not exceed the operating requirements of
§ 144.28(f)(3)(ii); and
(ii) Submit data acceptable to the Regional Ad-
ministrator which defines the fracture pressure of
the formation in which injection is taking place. A
single test may be submitted on behalf of two or
more operators conducting operations in the same
formation, if the Regional Administrator approves
such submission. The data shall be submitted to
the Regional Administrator within one year of the
effective date of this program.
(b) Casing and cementing. Where the Regional
Administrator determines that the owner or opera-
tor of an existing enhanced recovery or hydro-
carbon storage well may not be in compliance
with the requirements of §§ 144.28(e) and 146.22,
the owner or operator shall comply with para-
graphs (b) (1) through (4) of this section, when re-
quired by the Regional Administrator:
(1) Protect USDWs by:
(i) Cementing surface casing by recirculating
the cement to the surface from a point 50 feet
below the lowermost USDW; or
(ii) Isolating all USDWs by placing cement be-
tween the outermost casing and the well bore; and
(iii) For wells as described in § 146.8(b)(3)(ii),
installing a smaller diameter pipe inside the exist-
ing injection tubing and setting it on an appro-
priate packer; and
(2) Isolate any injection zones by placing suffi-
cient cement to fill the calculated space between
the casing and the well bore to a point 50 feet
above the injection zone; and
(3) Use cement:
(i) Of sufficient quantity and quality to with-
stand the maximum operating pressure;
(ii) Which is resistant to deterioration from for-
mation and injection fluids; and
(iii) In a quantity no less than 120% of the cal-
culated volume necessary to cement off a zone.
(4) The Regional Administrator may specify
other requirements in addition to or in lieu of the
requirements set forth in paragraphs (b) (1)
through (3) of this section as needed to protect
USDWs.
§147.1655 Requirements for wells au-
thorized by permit.
(a) The owner or operator of a Class I well au-
thorized by permit shall install or shall ensure that
the well has:
(1) Surface casing present;
(i) Extending from the surface to a depth at
least 50 feet below the base of the lowermost
USDW; and
(ii) Cemented back to the surface by recirculat-
ing the cement; and
(2) Long string casing and tubing;
(i) Extending to the injection zone; and
(ii) Cemented back to 50 feet above the base of
the next largest casing string.
(b) The owner or operator of a new Class II
well authorized by permit shall:
(1) Install surface casing from the surface to at
least 50 feet below the base of the lowermost
USDW.
(2) Cement the casing by recirculating to the
surface or by using no less than 120% of the cal-
culated annular volume.
(3) For new enhanced recovery wells, install
tubing or long string casing extending to the injec-
tion zone.
(4) For new salt water disposal wells, install
long string casing and tubing extending to the in-
jection zone.
(5) Isolate any injection zone by placing suffi-
cient cement to fill the calculated volume to a
point 50 feet above the injection zone.
(c) The Regional Administrator may specify
casing and cementing requirements other than
those listed in paragraphs (a) and (b) of this sec-
tion on a case by case basis as conditions of the
permit.
Subpart II—North Carolina
§147.1700 State-administered pro-
gram.
The UIC program for all classes of wells in the
State of North Carolina, except those wells on In-
dian lands, is the program administered by the
North Carolina Department of Environment,
Health and Natural Resources approved by EPA
pursuant to section 1422 of the SDWA. Notice of
this approval was published in the FEDERAL REG-
ISTER on April 19, 1984 (49 FR 15553); the effec-
tive date of this program is April 19, 1984. This
program consists of the following elements, as
submitted to EPA in the State's program applica-
tion:
(a) Incorporation by reference. The require-
ments set forth in the State statutes and regulations
cited in this paragraph are hereby incorporated by
reference and made a part of the applicable UIC
program under the SDWA for the State of North
Carolina. This incorporation by reference was ap-
proved by the Director of the OFR in accordance
with 5 U.S.C. 552(a) and 1 CFR part 51. Copies
may be obtained at the North Carolina Department
of Environment, Health and Natural Resources,
P.O. Box 27687, Raleigh, North Carolina 27611.
39
-------
§147.1703
Copies may be inspected at the Environmental
Protection Agency, Region IV, 345 Courtland
Street, NE., Atlanta, Georgia 30365, or at the Of-
fice of the Federal Register, 800 North Capitol
Street, NW., suite 700, Washington, DC.
(1) Administrative Procedure Act, N.C. GEN.
STAT. 150B-1 through 150B-64 (1987 and
Cumm. Supp. 1989);
(2) North Carolina Well Construction Act, N.C.
GEN. STAT. §§87-83 through 87-99 (1989 and
Cumm. Supp. 1989);
(3) Water and Air Resources, N.C. GEN. STAT.
§§ 143-211 through 143-215.10 (1987 and Cumm.
Supp. 1989);
(4) Solid Waste Management, N.C. GEN.
STAT. §§ 130A-290 through 130A-309.03 (1989);
(5) North Carolina Drinking Water Act, N.C.
GEN. STAT. §§130A-311 through 130A-332
(1989);
(6) Sanitary Sewage Systems, N.C. GEN.
STAT. §§ 130A-333 through 130A-335 (1989).
(b) Other laws. The following rules and regula-
tions, although not incorporated by reference, are
also part of the approved State-administered
program:
(1) N.C. ADMIN. CODE, Title 15, r. 02L.0100
et seq. Groundwater Classification and Standards:
General Considerations (September 22, 1988);
(2) N.C. ADMIN. CODE, Title 15, r. 02L.0100
et seq. Criteria and Standards Applicable to Injec-
tion Wells (September 22, 1988).
(c) Memorandum of Agreement. The Memoran-
dum of Agreement between the State of North
Carolina and EPA Region IV, signed March 1,
1984.
(d) Statement of legal authority. (1) Under-
ground Injection Control Program, Attorney Gen-
eral's Statement (June 15, 1982);
(2) Amendment to Underground Injection Con-
trol Program, Attorney General's Statement (Feb-
ruary 9, 1984).
(e) Program Description. The Program Descrip-
tion and other materials submitted as part of the
application or as supplements thereto.
[56 FR9417, Mar. 6, 1991]
§§147.1701—147.1702 [Reserved]
§147.1703 EPA-administered pro-
gram—Indian lands.
(a) Contents. The UIC program for all classes of
wells on Indian lands in the State of North Caro-
lina is administered by EPA. This program con-
sists of the UIC program requirements of 40 CFR
parts 124, 144, 146, 148, and any additional re-
quirements set forth in the remainder of this sub-
part. Injection well owners and operators, and
EPA shall comply with these requirements.
(b) Effective date. The effective date of the UIC
program for Indian lands in North Carolina is No-
vember 25, 1988.
[53 FR 43089, Oct. 25, 1988, as amended at 56 FR 9418,
Mar. 6, 1991]
§§ 147.1704— 147.1749 [Reserved]
Subpart JJ—North Dakota
§147.1750 State-administered pro-
gram—Class II wells.
The UIC program for Class II wells in the State
of North Dakota, except those on Indian lands, is
the program administered by the North Dakota In-
dustrial Commission, approved by EPA pursuant
to section 1425 of the SOW A. Notice of this ap-
proval was published in the FEDERAL REGISTER on
August 23, 1983 (48 FR 38237); the effective date
of this program is September 24, 1983. This pro-
gram consists of the following elements, as sub-
mitted to EPA in the State's program application.
(a) Incorporation by reference. The require-
ments set forth in the State statutes and regulations
cited in this paragraph are hereby incorporated by
reference and made a part of the applicable UIC
program under the SDWA for the State of North
Dakota. This incorporation by reference was ap-
proved by the Director of the Federal Register on
June 25, 1984.
(1) North Dakota Century Code, Chapter 38-08
(Control of Gas and Oil Resources, 1987 and
Supp. 1989);
(2) North Dakota Administrative Code, Chapter
43-02-05 (Underground Injection Control, as pub-
lished in Statutes and Rules for the Conservation
of Oil and Gas, North Dakota Industrial Commis-
sion, revised effective November 1, 1987);
(3) North Dakota Administrative Code, Chapter
43-02-03 (General Rules, as published in Statutes
and Rules for the Conservation of Oil and Gas,
North Dakota Industrial Commission, revised ef-
fective November 1, 1987).
(b) The Memorandum of Agreement between
EPA Region VIII and the North Dakota Industrial
Commission, Oil and Gas Division, signed by the
EPA Regional Administrator on June 16, 1983, as
amended September 7, 1989.
(c) Statement of legal authority. ' 'Underground
Injection Control Program Attorney General's
Statement," as submitted with the North Dakota
Underground Injection Control Program Primacy
Application for Class II Injection Wells, transmit-
ted by the Governor on July 15, 1982 (16 pages).
(d) The Program Description and other materials
submitted as part of the application or as supple-
ments thereto.
[49 FR 20197, May 11, 1984, as amended at 53 FR
43089, Oct. 25, 1988; 56 FR 9418, Mar. 6, 1991]
40
-------
§147.1800
§147.1751 State-administered pro-
gram—Class I, III, IV and V wells.
The UIC program for Class I, III, IV, and V
wells in the State of North Dakota, except those
on Indian lands, is the program administered by
the North Dakota Department of Health, approved
by EPA pursuant to section 1422 of the SOW A.
Notice of this approval was published in the FED-
ERAL REGISTER on September 21, 1984; the effec-
tive date of this program is October 5, 1984. This
program consists of the following elements, as
submitted to EPA in the State's program applica-
tion.
(a) Incorporation by reference. The require-
ments set forth in the State statutes and regulations
cited in this paragraph are hereby incorporated by
reference and made a part of the applicable UIC
program under the SDWA for the State of North
Dakota. This incorporation by reference was ap-
proved by the Director of the Federal Register ef-
fective October 5, 1984.
(1) North Dakota Century Code Sections 38-
12-01, 38-12-03 (1980);
(2) North Dakota Century Code, Sections 61-
28-02 and 61-28-06 (1989);
(3) North Dakota Administrative Code Sections
33-25-01-01 through 33-25-01-18 (North Dakota
State Health Department Underground Control
Program) (1983);
(4) North Dakota Administrative Code, Chapter
43-02-02 (Subsurface Mineral Exploration and
Development) (August 1986), and Chapter 43-02-
02.1 (Underground Injection Control Program)
(March 1, 1984);
(5) North Dakota Administrative Code Sections
43-02-02-1-01 through 43-02-02-1-18 (North
Dakota Geological Survey—Undergound Injection
Control Program) (1984);
(b) Other laws. The following statutes and regu-
lations, although not incorporated by reference,
also are part of the approved State-administered
program;
(1) North Dakota Environmental Law Enforce-
ment Act of 1975, North Dakota Century Code
Sections 32-40-01 to 32^10-11 (1976);
(2) North Dakota Century Code, Ch. 38-12
(Regulation, Development, and Production of Sub-
surface Minerals) (1979);
(3) North Dakota Century Code Chapter 61-28
(Control, Prevention and Abatement of Pollution
of Surface Waters) (1989);
(4) North Dakota Administrative Code Article
33-22 (Practice and Procedure) (1983).
(c) The Memorandum of Agreement between
EPA Region VIII and the North Dakota Depart-
ment of Health, signed by the EPA Regional Ad-
ministrator on May 18, 1984.
(d) The Program Description and any other ma-
terials submitted as part of the original application
or as supplements thereto.
[49 FR 37066, Sept. 21, 1984, as amended at 56 FR
9418, Mar. 6, 1991]
§147.1752 EPA-administered pro-
gram—Indian lands.
(a) Contents. The UIC program for all classes of
wells on Indian lands in the State of North Dakota
is administered by EPA. This program consists of
the UIC program requirements of 40 CFR parts
124, 144, 146, 148, and any additional require-
ments set forth in the remainder of this subpart.
Injection well owners and operators, and EPA
shall comply with these requirements.
(b) Effective date. The effective date of the UIC
program for Indian lands in North Dakota is No-
vember 25, 1988.
[53 FR 43089, Oct. 25, 1988, as amended at 56 FR 9418,
Mar. 6, 1991]
Subpart KK—Ohio
§147.1800 State-administered pro-
gram—Class II wells.
The UIC program for Class II wells in the State
of Ohio, except for those on Indian lands, is the
program administered by the Ohio Department of
Natural Resources, approved by EPA pursuant to
section 1425 of the SDWA. Notice of this ap-
proval was published in the FEDERAL REGISTER on
August 23, 1983 (48 FR 38238); the effective date
of this program is September 22, 1983. This pro-
gram consists of the following elements, as sub-
mitted to EPA in the State's program application:
(a) Incorporation by reference. The require-
ments set forth in the State statutes and regulations
cited in this paragraph are hereby incorporated by
reference and made a part of the applicable UIC
program under the SDWA for the State of Ohio.
This incorporation by reference was approved by
the Director of the Federal Register on June 25,
1984.
(1) Ohio Revised Code Annotated, sections
1509.01 through 1509.22 (Page 1978 and Supp.
1982);
(2) Rules of the Division of Oil and Gas, Ohio
Administrative Code sections 1501:91-01, through
1501: 9-11-13 (1983).
(b) The Memorandum of Agreement between
EPA Region V and the Ohio Department of Natu-
ral Resources.
(c) Statement of legal authority. ' 'Underground
Injection Control Program—Attorney General's
Statement,'' signed by the Assistant Attorney Gen-
eral, Chief, Environmental Law Section, for the
Attorney General of Ohio, September 30, 1982.
41
-------
§147.1801
(d) The Program Description and any other ma-
terials submitted as part of the application or as
supplements thereto.
[49 FR 20197, May 11, 1984, as amended at 53 FR
43089, Oct. 25, 1988]
§147.1801 State-administered pro-
gram—Class I, III, IV and V wells.
The UIC program for Class I, III, IV, and V
wells in the State of Ohio, other than those on In-
dian lands, is the program administered by the
Ohio Department of Natural Resources and the
Ohio Environmental Protection Agency, approved
by EPA pursuant to section 1422 of the SOW A.
Notice of this approval was published in the FED-
ERAL REGISTER on November 29, 1984; the effec-
tive date of this program is January 14, 1985. This
program consists of the following elements, as
submitted to EPA in the State's program applica-
tion.
(a) Incorporation by reference. The require-
ments set forth in the State statutes and regulations
cited in this paragraph are hereby incorporated by
reference and made a part of the applicable UIC
program under the SDWA for the State of Ohio.
This incorporation by reference was approved by
the Director of the FEDERAL REGISTER effective
January 14, 1985.
(1) Ohio Revised Code Annotated, sections
1509.01, 1509.03, 1509.221 (Supp. 1983);
(2) Rules of the Division of Oil and Gas, Ohio
Administrative Code, sections 1501:9-7-01
through 7-14 (1984);
(3) Ohio Revised Code Annotated, sections
6111.04, 6111.043, 6111.044 (Supp. 1983);
(4) Rules of the Ohio Environmental Protection
Agency, Ohio Administrative Code, sections
3745-34-01 through 34-41; 3745-9-01 through
9-11 (Director Ohio EPA Order, June 18, 1984).
(b) Other laws. The following statutes and regu-
lations, although not incorporated by reference,
also are part of the approved State-administered
program:
(1) Ohio Revised Code, Chapter 119 (1978 Re-
placement Part);
(2) Ohio Code Supplement, sections 6111.041,
6111.042, 6111.045 (Supp. 1982).
(c) (1) The Memorandum of Agreement be-
tween EPA Region V and the Ohio Department of
Natural Resources, signed by the EPA Regional
Administrator on March 30, 1984;
(2) Memorandum of Agreement between the
Ohio Department of Natural Resources and the
Ohio Environmental Protection Agency, Related to
the Underground Injection Control Program for the
State of Ohio, signed August 1, 1984.
(d) Statement of legal authority. Statement from
Attorney General of the State of Ohio, by Senior
Assistant Attorney General, "Underground Injec-
tion Control Program—Attorney General's State-
ment," July 25, 1984.
(e) The Program Description and any other ma-
terials submitted as part of the original application
or as supplements thereto.
[49 FR 46897, Nov. 29, 1984]
§147.1802 Aquifer exemptions. [Re-
served]
§147.1803 Existing Class I and III
wells authorized by rule—maximum
injection pressure.
The owner or operator shall limit injection pres-
sure to the lesser of:
(a) A value which will not exceed the operating
requirements of § 144.28(f)(3)(i); or
(b) A value for well head pressure calculated by
using the following formula:
Pm = (0.8—0.433 Sg) d
where
Pm = injection pressure at the well head in pounds per
square inch
Sg = specific gravity of injected fluid (unitless)
d = injection depth in feet.
[49 FR 45308, Nov. 15, 1984]
§147.1805 EPA-administered pro-
gram—Indian lands.
(a) Contents. The UIC program for all classes of
wells on Indian lands in the State of Ohio is ad-
ministered by EPA. This program consists of the
UIC program requirements of 40 CFR parts 124,
144, 146, 148, and any additional requirements set
forth in the remainder of this subpart. Injection
well owners and operators, and EPA shall comply
with these requirements.
(b) Effective date. The effective date of the UIC
program for Indian lands in Ohio is November 25,
1988.
[53 FR 43089, Oct. 25, 1988, as amended at 56 FR 9418,
Mar. 6, 1991]
Subpart LL—Oklahoma
§147.1850 State-administered pro-
gram—Class I, III, IV and V wells.
The UIC program for Class I, III, IV, and V
wells in the State of Oklahoma, except those on
Indian lands, is the program administered by the
Oklahoma State Department of Health, approved
by EPA pursuant to SDWA section 1422. Notice
of this approval was published in the FEDERAL
REGISTER on June 24, 1982 (47 FR 27273). The
effective date of this program is July 24, 1982.
This program consists of the following elements,
as submitted to EPA in the State's program appli-
cation:
42
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§147.1852
(a) Incorporation by reference. The require-
ments set forth in the State statutes and regulations
cited in this paragraph are hereby incorporated by
reference and made a part of the applicable UIC
program under the SDWA for the State of Okla-
homa. This incorporation by reference was ap-
proved by the Director of the Federal Register on
June 25, 1984.
(1) Oklahoma Statutes title 63 sections 1-901,
1-903 (1981);
(2) Oklahoma Controlled Industrial Waste Dis-
posal Act, Oklahoma Statute Annotated title 63
sections 1-2002, 1-2014 (West Supp. 1983-1984);
(3) Regulations. [Reserved]
(b) Other laws. The following statutes and regu-
lations, although not incorporated by reference ex-
cept for select sections identified in paragraph (a)
of this section, are also part of the approved State-
administered UIC program:
(1) Oklahoma Open Meeting Act, Oklahoma
Statutes title 25 sections 301 through 314 (Supp.
1978);
(2) Oklahoma Statutes Annotated title 63 sec-
tions 1-101 to 1-114, 1-901 to 1-911, 1-1601 et
seq., 1-1701, 1-2001 to 1-2014 (West 1973 and
Supp. 1982);
(3) Oklahoma Statutes Annotated title 75 sec-
tions 301 to 327 (West 1976 and Supp. 1982).
(c) (1) The Memorandum of Agreement be-
tween EPA Region VI and the Oklahoma State
Department of Health, signed by the EPA Re-
gional Administrator on April 13, 1982;
(2) Memorandum of Understanding between the
Oklahoma State Department of Health and the
Oklahoma Corporation Commission (OCC), signed
by members of the OCC on February 12, 1982;
(3) Memorandum of Understanding between the
Oklahoma State Department of Health and the
Oklahoma Department of Mines (ODM), signed
by the Deputy Chief Mine Inspector, ODM, on
February 15, 1982.
(d) Statement of legal authority. Letter from At-
torney General of Oklahoma to Commissioner of
Health, Oklahoma State Department of Health,
"Re: Statement and Memorandum of Law Con-
cerning the Authority for the Oklahoma State De-
partment of Health's Underground Injection Con-
trol Program," February 12, 1982.
(e) The Program Description and any other ma-
terials submitted as part of the application or as
supplements thereto.
[49 FR 20197, May 11, 1984, as amended at 53 FR
43090, Oct. 25, 1988]
§147.1851 State-administered pro-
gram—Class II wells.
The UIC program for Class II wells in the State
of Oklahoma, including the lands of the Five Civ-
ilized Tribes, but not including those on other In-
dian lands, is the program administered by the
Oklahoma Corporation Commission approved by
EPA pursuant to SDWA section 1425. Notice of
this approval was published in the FEDERAL REG-
ISTER on December 2, 1981 (46 FR 58588). This
program consists of the following elements, as
submitted to EPA in the State's program applica-
tion:
(a) Incorporation by reference. [Reserved]
(b) Other laws. The following statutes and regu-
lations, although not incorporated by reference, are
also part of the approved State-administered UIC
program:
(1) Oklahoma Statutes, title 17 sections 51-53;
title 52 sections 86.1-86.5, 139-153, 243, 307-
318.1 (1971).
(2) OCC-OGR Rules No. 1-101-3-303.
(c) (1) The Memorandum of Agreement be-
tween EPA Region VI and the Oklahoma Corpora-
tion Commission, signed by the EPA Regional
Administrator on April 13, 1981;
(2) Letter from the Manager, Underground In-
jection Control, Oklahoma Corporation Commis-
sion, to EPA, June 18, 1981.
(d) Statement of legal authority. "Statement of
Legal Authority of the Oklahoma Corporation
Commission to Conduct an Underground Injection
Control Program," (Part IV, pages 30-41 of
"State of Oklahoma Primacy Application for Au-
thority to Regulate Class II Injection Wells," sub-
mitted April 14, 1981), signed by the Conservation
Attorney, Counsel to the Director and the Okla-
homa Corporation Commission.
(e) The Program Description and any other ma-
terials submitted as part of the application or as
supplements thereto.
[49 FR 20197, May 11, 1984, as amended at 53 FR
43090, Oct. 25, 1988]
§147.1852 EPA-administered pro-
gram—Indian lands.
(a) Contents. The UIC program for all wells on
Indian lands in Oklahoma, except Class II wells
on the lands of the Five Civilized Tribes, is ad-
ministered by EPA. The UIC program for Class II
wells on the Osage Mineral Reserve consists of
the requirements set forth in subpart GGG of this
part. The UIC program for all other wells on In-
dian lands consists of the requirements set forth in
subpart III of this part. Injection well owners and
operators and EPA shall comply with these re-
quirements.
(b) Effective date. The effective date for UIC
program for Class II wells on the Osage Mineral
Reserve is December 30, 1984. The effective date
for the UIC program for all other wells on Indian
lands is November 25, 1988.
[53 FR 43090, Oct. 25, 1988]
43
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§147.1900
Subpart MM—Oregon
§147.1900 State-administered pro-
gram.
The UIC program for all classes of wells in the
State of Oregon, except those on Indian lands, is
administered by the Oregon Department of Envi-
ronmental Quality, approved by EPA pursuant to
section 1422 and section 1425 of the SOW A. No-
tice of this approval was published in the FED-
ERAL REGISTER on September 25, 1984; the effec-
tive date of this program is October 9, 1984. This
program consists of the following elements, as
submitted to EPA in the State's program applica-
tion.
(a) Incorporation by reference. The require-
ments set forth in the State statutes and regulations
cited in this paragraph are hereby incorporated by
reference and made a part of the applicable UIC
program under the SDWA for the State of Oregon.
This incorporation by reference was approved by
the Director of the FEDERAL REGISTER effective
October 9, 1984.
(1) Oregon Revised Statutes, Title 16, chapter
164, section 164.785; Title 36, chapter 468, sec-
tions 468.005, 468.065 to 468.070, 468.700 to
468.815; Title 43, chapter 520 sections 520.005,
520.095, 520.155—520.330 (1983);
(2) Oregon Administrative Rules, Chapter 340,
Division 44, sections 340-44-005 through 340-
44-055 (October 1983); Chapter 340, Division 45,
sections 340-45-005 through 340-45-075 (Janu-
ary 1990); Chapter 632, Division 10, sections
632-10-002 through 632-10-235 (May 1986);
Chapter 632, Division 20, sections 632-20-005
through 632-20-180 (May 1984).
(b) Other laws. The following statutes and regu-
lations, although not incorporated by reference,
also are part of the approved State-administered
program:
(1) Oregon Revised Statutes, Chapter 183
(1987); 192.420, 192.500, 459.460(3), 468.005
through 468.605, and 468.780 through 468.997;
Chapters 516 and 522 (1983);
(2) Oregon Administrative Rules, chapter 137,
Div. 3 (July 1982); chapter 340, Div. 11 (April
1988); chapter 340, Div. 12 (March 1989); chapter
340, Div. 14 (November 1983); chapter 340, Div.
52 (November 1983); chapter 632, Div. 1 (June
1980); chapter 632, Div. 20 (January 1981).
(c)(l) The Memorandum of Agreement between
EPA Region X and the Oregon Department of En-
vironmental Quality, signed by the EPA Regional
Administrator on May 3, 1984.
(d) Statement of legal authority. (1) "Under-
ground Injection Control Program Legal Counsel's
Statement," October 1983, signed by the Assistant
Attorney General, Oregon;
(2) Opinion of the Attorney General, Oregon,
35 Op. Attorney General 1042 (1972).
(e) The Program Description and any other ma-
terials submitted as part of the original application
or as supplements thereto.
[49 FR 37594, Sept. 25, 1984, as amended at 53 FR
43090, Oct. 25, 1988; 56 FR 9418, Mar. 6, 1991]
§147.1901 EPA-administered pro-
gram—Indian lands.
(a) Contents. The UIC program for all classes of
wells on Indian lands in the State of Oregon is ad-
ministered by EPA. This program consists of the
UIC program requirements of 40 CFR parts 124,
144, 146, 148, and any additional requirements set
forth in the remainder of this subpart. Injection
well owners and operators, and EPA shall comply
with these requirements.
(b) Effective date. The effective date of the UIC
program for Indian lands in Oregon is November
25, 1988.
[53 FR 43090, Oct. 25, 1988, as amended at 56 FR 9419,
Mar. 6, 1991]
Subpart NN—Pennsylvania
§147.1950 State-administered pro-
gram. [Reserved]
§147.1951 EPA-administered program.
(a) Contents. The UIC program for the State of
Pennsylvania, including all Indian lands, is admin-
istered by EPA. This program consists of the UIC
program requirements of 40 CFR parts 124, 144,
146, 148, and any additional requirements set forth
in the remainder of this subpart. Injection well
owners and operators, and EPA shall comply with
these requirements.
(b) Effective dates. The effective date for the
UIC program on Indian lands is November 25,
1988. The effective date for the UIC program for
the rest of Pennsylvania is June 25, 1984.
[53 FR 43090, Oct. 25, 1988, as amended at 56 FR 9419,
Mar. 6, 1991]
§ 147.1952 Aquifer exemptions.
(a) This section identifies any aquifers or their
portions exempted in accordance with §§ 144.7(b)
and 146.4 of this chapter at the time of program
promulgation. EPA may in the future exempt other
aquifers or portions, according to applicable proce-
dures, without codifying such exemptions in this
section. An updated list of exemptions will be
maintained in the Regional office.
(b) Those portions of the following oil bearing
aquifers, which would otherwise meet the defini-
tion of a USDW, are exempted in accordance with
the provisions of §§ 144.7(b) and 146.4 of this
44
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§147.1954
chapter for Class II enhanced recovery injection
activities only.
(1) The Sugar Run and Bradford series of oil
producing sands of the Bradford Field, in McKean
County; including the Bradford, West Branch,
Stack, Bennett Brook, Marilla Brook, Brooder
Hollow, Cyclone, Minard Run, Minard Run
School, and Sugar Run (or Watsonville) Pools.
(2) The Bradford Third oil producing sand of
the Guffey Field in McKean County.
(3) The Bradford series of oil producing sands
of the Lewis Run Field in McKean County.
(4) The Bradford series of oil producing sands
of the Windfall Field and Kings Run Pool in
McKean County.
(5) The Red Valley member of the Second Sand
formation of the Venango Group of oil producing
sands in the Foster-Reno Field in Venango Coun-
ty; including the Foster, Bully Hill, Victory,
Bredinsburg, Egypt Corners, Reno, Monarch Park
and Seneca Pools.
(6) The Glade and Clarendon oil producing
sands of the Morrison Run Field and Elk Run
Pool in Warren County.
(7) The Clarendon and Glade oil producing
sands of the Clarendon Field in Warren County.
(8) The Bradford Third oil producing sand in
the Shinglehouse Field, including the Kings Run,
Janders Run and Ceres Pools in Potter and
McKean Counties.
§147.1953 Existing Class I, II (except
enhanced recovery and hydro-
carbon storage) and III wells au-
thorized by rule.
Maximum injection pressure. The owner or op-
erator shall limit injection pressure to the lesser of:
(a) A value which will not exceed the operating
requirements of § 144.28(f)(3) (i) or (ii) as applica-
ble or
(b) A value for well head pressure calculated by
using the following formula:
Pm=(0.733— 0.433 Sg)d
where
Pm=injection pressure at the well head in pounds per
square inch
Sg=specific gravity of injection fluid (unitless)
d=injection depth in feet.
§147.1954 Existing Class II enhanced
recovery and hydrocarbon storage
wells authorized by rule.
(a) Maximum injection pressure. (1) To meet
the operating requirements of § 144.28(f)(3)(ii) (A)
and (B) of this chapter, the owner or operator:
(i) Shall use an injection pressure no greater
than the pressure established by the Regional Ad-
ministrator for the field or formation in which the
well is located. The Regional Administrator shall
establish such a maximum pressure after notice,
opportunity for comment, and opportunity for a
public hearing, according to the provisions of part
124, subpart A of this chapter, and will inform
owners and operators in writing of the applicable
maximum pressure; or
(ii) May inject at pressures greater than those
specified in paragraph (a)(l)(i) of this section for
the field or formation in which he is operating
provided he submits a request in writing to the
Regional Administrator, and demonstrates to the
satisfaction of the Regional Administrator that
such injection pressure will not violate the require-
ment of § 144.28(f)(3)(ii) (A) and (B). The Re-
gional Administrator may grant such a request
after notice, opportunity for comment, and oppor-
tunity for a public hearing, according to the provi-
sions of part 124, subpart A of this chapter.
(2) Prior to such time as the Regional Adminis-
trator establishes rules for maximum injection
pressure based on data provided pursuant to para-
graph (a)(2)(ii) of this section the owner or opera-
tor shall:
(i) Limit injection pressure to a value which
will not exceed the operating requirements of
§ 144.28(f)(3)(ii); and
(ii) Submit data acceptable to the Regional Ad-
ministrator which defines the fracture pressure of
the formation in which injection is taking place. A
single test may be submitted on behalf of two or
more operators conducting operations in the same
formation, if the Regional Administrator approves
such submission. The information shall be submit-
ted to the Regional Administrator within one year
of the effective date of this regulation.
(b) Casing and cementing. Where the Regional
Administrator determines that the owner or opera-
tor of an existing enhanced recovery or hydro-
carbon storage well may not be in compliance
with the requirements of §§ 144.28(e) and 146.22,
the owner or operator shall comply with para-
graphs (b) (1) through (4) of this section, when re-
quired by the Regional Administrator:
(1) Protect USDWs by:
(i) Cementing surface casing by recirculating
the cement to the surface from a point 50 feet
below the lowermost USDW; or
(ii) Isolating all USDWs by placing cement be-
tween the outermost casing and the well bore; and
(iii) For wells as described in § 146.8(b)(3)(ii),
installing a smaller diameter pipe inside the exist-
ing injection tubing and setting it on an appro-
priate packer; and
(2) Isolate any injection zones by placing suffi-
cient cement to fill the calculated space between
the casing and the well bore to a point 50 feet
above the injection zone; and
(3) Use cement:
45
-------
§147.1955
(i) Of sufficient quantity and quality to with-
stand the maximum operating pressure;
(ii) Which is resistant to deterioration from for-
mation and injection fluids; and
(iii) In a quantity no less than 120% of the cal-
culated volume necessary to cement off a zone.
(4) The Regional Administrator may specify
other requirements in addition to or in lieu of the
requirements set forth in paragraphs (b) (1)
through (3) of this section as needed to protect
USDWs.
§147.1955 Requirements for wells au-
thorized by permit.
(a) The owner or operator of a Class I well au-
thorized by permit shall install or shall ensure that
the well has:
(1) Surface casing present;
(i) Extending from the surface to a depth at
least 50 feet below the base of the lowermost
USDW; and
(ii) Cemented back to the surface by recirculat-
ing the cement; and
(2) Long string casing and tubing;
(i) Extending to the injection zone; and
(ii) Cemented back to 50 feet above the base of
the next largest casing string.
(b) The owner or operator of a new Class II
well authorized by permit shall:
(1) Install surface casing from the surface to at
least 50 feet below the base of the lowermost
USDW.
(2) Cement the casing by recirculating to the
surface or by using no less than 120% of the cal-
culated annular volume.
(3) For new enhanced recovery wells, install
tubing or long string casing extending to the injec-
tion zone.
(4) For new salt water disposal wells, install
long string casing and tubing extending to the in-
jection zone.
(5) Isolate any injection zone by placing suffi-
cient cement to fill the calculated volume to a
point 50 feet above the injection zone.
(c) The Regional Administrator may specify
casing and cementing requirements other than
those listed in paragraphs (a) and (b) of this sec-
tion on a case by case basis as conditions of the
permit.
Subpart OO—Rhode Island
§147.2000 State-administered pro-
gram—Class I, II, III, IV, and V
wells.
The UIC program for all classes of wells in
Rhode Island, except those on Indian lands, is the
program administered by the Rhode Island Depart-
ment of Environmental Management, approved by
EPA pursuant to section 1422 of the SOW A. No-
tice of this approval was published in the FED-
ERAL REGISTER on August 1, 1984; the effective
date of this program is August 15, 1984. This pro-
gram consists of the following elements, as sub-
mitted to EPA in the State's program application.
(a) Incorporation by reference. The require-
ments set forth in the State statutes and regulations
cited in this paragraph are hereby incorporated by
reference and made a part of the applicable UIC
program under the SDWA for the State of Rhode
Island. This incorporation by reference was ap-
proved by the Director of the Federal Register ef-
fective August 15, 1984.
(1) Rhode Island Gen. Laws sections 46-12-1,
46-12-5, and 46-12-28 (Supp. 1983);
(2) "Underground Injection Control Program
Rules and Regulations." State of Rhode Island
and Providence Plantations Department of Envi-
ronmental Management. Division of Water Re-
sources (as received by the Secretary of State,
May 21, 1984).
(b) Other laws. The following statutes and regu-
lations although not incorporated by reference,
also are part of the approved State-administered
program:
(1) Rhode Island General Laws, Section 10-20-
1 et seq., entitled "State Environmental Rights";
(2) Rhode Island General Laws, Section 23-
19.1-1 et seq., entitled "Hazardous Waste Man-
agement";
(3) Rhode Island General Laws, Section 42-
17.1 et seq., entitled "Department of Environ-
mental Management";
(4) Rhode Island General Laws, Section 42-35-
1 et seq., entitled "Administrative Procedures";
(5) Rhode Island General Laws, Section 46-12-
1 et seq., entitled "Water Pollution";
(6) Hazardous Waste Management Facility Op-
erating Permit Rules and Regulations—Landfills,
at last amended November 2, 1981 (hereinafter re-
ferred to as the "Hazardous Waste Regulation");
(7) Water Quality Regulations for Water Pollu-
tion Control, effective November 19, 1981; and
(8) Administrative Rules of Practices and Proce-
dure for Department of Environmental Manage-
ment, effective November 12, 1980.
(c) (1) The Memorandum of Agreement be-
tween EPA Region I and the Rhode Island Depart-
ment of Environmental Management, signed by
the EPA Regional Administrator on March 29,
1984;
(2) Letter from Director, Rhode Island Depart-
ment of Environmental Management, to Regional
Administrator, EPA Region I, amending Section
III, C of the Memorandum of Agreement, April
25, 1984.
(d) Statement of legal authority. Letter from At-
torney General, State of Rhode Island and Provi-
46
-------
§147.2100
dence Plantations, to Regional Administrator, EPA
Region 1, "Re: Attorney General's Statement, Un-
derground Injection Control Program," January
17, 1984.
(e) The Program Description and any other ma-
terials submitted as part of the original application
or as supplements thereto.
[49 FR 30699, Aug. 1, 1984, as amended at 53 FR
43090, Oct. 25, 1988]
§147.2001 EPA-administered pro-
gram—Indian lands.
(a) Contents. The UIC program for all classes of
wells on Indian lands in the State of Rhode Island
is administered by EPA. This program consists of
the UIC program requirements of 40 CFR parts
124, 144, 146, 148, and any additional require-
ments set forth in the remainder of this subpart.
Injection well owners and operators, and EPA
shall comply with these requirements.
(b) Effective date. The effective date of the UIC
program for Indian lands in Rhode Island is No-
vember 25, 1988.
[53 FR 43090, Oct. 25, 1988, as amended at 56 FR 9419,
Mar. 6, 1991]
Subpart PP—South Carolina
§147.2050 State-administered pro-
gram.
The UIC program for all classes of wells in the
State of South Carolina, except for those on Indian
lands, is the program administered by the South
Carolina Department of Health and Environmental
Control, approved by EPA pursuant to section
1422 of the SOW A. Notice of this approval was
published in the FEDERAL REGISTER on July 10,
1984; the effective date of this program is July 24,
1984. This program con-
sists of the following elements, as submitted to
EPA in the State's program application.
(a) Incorporation by reference. The require-
ments set forth in the State statutes and regulations
cited in this paragraph are hereby incorporated by
reference and made a part of the applicable UIC
program under the SDWA for the State of South
Carolina. This incorporation by reference was ap-
proved by the Director of the Federal Register ef-
fective July 24, 1984.
(1) Pollution Control Act, S.C. Code Ann. Sec-
tions 48-1-10, 48-1-90, 48-1-100, 48-1-110
(Law. Co-op. 1976 and Supp. 1983).
(2) South Carolina Department of Health and
Environmental Control, Ground-Water Protection
Division, Underground Injection Control Regula-
tions, R-61-87, Effective Date: June 24, 1983
Published in South Carolina State Register, Vol-
ume 7, Issue 6; Amended Date: March 23, 1984,
as amended by notice in South Carolina State
Register, Volume 8, Issue 3.
(b) Other laws. The following statutes and regu-
lations although not incorporated by reference,
also are part of the approved State-Administered
program:
(1) Pollution Control Act, S.C. Code Ann. Sec-
tions 48-1-10 to 48-1-350 (Law. Co-op. 1976
and Supp. 1983).
(2) State Safe Drinking Water Act, S.C. Code
Ann. Sections 44-55-10 to 44-55-100 (Law. Co-
op. 1976 and Supp. 1983).
(3) Administrative Procedures Act, S.C. Code
Ann. Sections 1-23-10 et seq., and 1-23-310 to
l-23^tOO (Law. Co-op. 1976 and Supp. 1983).
(4) S.C. Code Ann. Sections 15-5-20, 15-5-
200 (Law. Co-op. 1976 and Supp. 1983).
(c)(l) The Memorandum of Agreement between
EPA Region IV and the South Carolina Depart-
ment of Health and Environmental Control signed
by the EPA Regional Administrator on May 29,
1984.
(d) Statement of legal authority. (1) "Under-
ground Injection Control Program, Attorney Gen-
eral's Statement for Class I, II, III, IV and VA and
VB Wells," signed by the Attorney General of
South Carolina on April 27, 1984.
(e) The Program Description and any other ma-
terials submitted as part of the original application
or as supplements thereto.
[49 FR 28058, July 10, 1984, as amended at 53 FR
43090, Oct. 25, 1988]
§147.2051 EPA-administered pro-
gram—Indian lands.
(a) Contents. The UIC program for all classes of
wells on Indian lands in the State of Rhode Island
is administered by EPA. This program consists of
the UIC program requirements of 40 CFR parts
124, 144, 146, 148, and any additional require-
ments set forth in the remainder of this subpart.
Injection well owners and operators, and EPA
shall comply with these requirements.
(b) Effective date. The effective date of the UIC
program for Indian lands in South Carolina is No-
vember 25, 1988.
[53 FR 43090, Oct. 25, 1988, as amended at 56 FR 9419,
Mar. 6, 1991]
Subpart QQ—South Dakota
§147.2100 State-administered pro-
gram—Class II wells.
The UIC program for Class II wells in the State
of South Dakota, except those on Indian lands, is
the program administered by the South Dakota
Department of Water and Natural Resources, ap-
proved by EPA pursuant to section 1425 of the
47
-------
§147.2101
SDWA. Notice of this approval was published in
the FEDERAL REGISTER on October 24, 1984; the
effective date of this program is December 7,
1984. This program con-
sists of the following elements, as submitted to
EPA in the State's program application.
(a) Incorporation by reference. The require-
ments set forth in the State statutes and regulations
cited in this paragraph are hereby incorporated by
reference and made a part of the applicable UIC
program under the SDWA for the State of South
Dakota. This incorporation by reference was ap-
proved by the Director of the Federal Register ef-
fective December 7, 1984.
(1) South Dakota Codified Laws, sections 45-9-
2, 45-9^1, 45-9-11, 45-9-13, 45-9-14, 45-9-15
(1983).
(2) Administrative Rules of South Dakota, sec-
tions 74:10:02 through 74:10:07, 74:10:09, and
74:10:11 published by the South Dakota Code
Commission, as revised through October 4, 1987.
(b) Other laws. The following statutes and regu-
lations, although not incorporated by reference,
also are part of the approved State-administered
program:
(1) South Dakota Codified Laws, Chapter 45-9
(sections not cited above) (1983); 1-26 (1981).
(c)(l) The Memorandum of Agreement between
EPA Region VIII and the South Dakota Depart-
ment of Water and Natural Resources, signed by
the EPA Regional Administrator on July 18, 1984.
(d) Statement of legal authority. (1) "Under-
ground Injection Control Program for Class II
Wells: Attorney General's Statement," signed by
Mark V. Meierhery, Attorney General, South Da-
kota, on January 16, 1984.
(e) The Program Description and any other ma-
terials submitted as part of the original application
or as supplements thereto.
[50 FR 7061, Feb. 20, 1985, as amended at 56 FR 9419,
Mar. 6, 1991]
§147.2101 EPA-administered pro-
gram—Class I, III, IV and V wells
and all wells on Indian lands.
(a) Contents. The UIC program for all Class I,
III, IV, and V wells, including those on Indian
lands, and for Class II wells on Indian lands in the
state of South Dakota is administered by EPA.
This program consists of the UIC program require-
ments of 40 CFR parts 124, 144, 146, 148, and
any additional requirements set forth in the re-
mainder of this subpart. Injection well owners and
operators, and EPA shall comply with these re-
quirements.
(b) Effective date. The effective date of the UIC
program for Class I, III, IV and V wells on all
lands in South Dakota, including Indian lands, and
for Class II wells on Indian lands only, is Decem-
ber 30, 1984.
[52 FR 17682, May 11, 1987, as amended at 56 FR 9419,
Mar. 6, 1991]
§ 147.2102 Aquifer exemptions.
(a) This section identifies any aquifers or their
portions exempted in accordance with §§ 144.7(b)
and 146.4 of this chapter at the time of program
promulgation. EPA may in the future exempt other
aquifers or their portions, according to applicable
procedures, without codifying such exemptions in
this section. An updated list of exemptions will be
maintained in the Regional office.
(b) Those portions of all aquifers located on In-
dian Lands, which meet the definition of USDW
and into which existing Class II wells are inject-
ing, are exempted within a Vi mile radius of the
well for the purpose of Class II injection activities
only.
[49 FR 45308, Nov. 15, 1984]
§147.2103 Existing Class II enhanced
recovery and hydrocarbon storage
wells authorized by rule.
(a) Maximum injection pressure. (1) To meet
the operating requirements of § 144.28(f)(3)(ii) (A)
and (B) of this chapter, the owner or operator:
(i) Shall use an injection pressure no greater
than the pressure established by the Regional Ad-
ministrator for the field or formation in which the
well is located. The Regional Administrator shall
establish such a maximum pressure after notice,
opportunity for comments, and opportunity for a
public hearings, according to the provisions of part
124, subpart A of this chapter, and will inform
owners and operators in writing of the applicable
maximum pressure; or
(ii) May inject at a pressure greater than those
specified in paragraph (a)(l)(i) of this section for
the field or formation in which he is operating
provided he submits a request in writing to the
Regional Administrator, and demonstrates to the
satisfaction of the Regional Administrator that
such injection pressure will not violate the require-
ment of § 144.28(f)(3)(ii)(A) and (B). The Re-
gional Administrator may grant such a request
after notice, opportunity for comment, and oppor-
tunity for a public hearing, according to the provi-
sions of part 124, subpart A of this chapter.
(2) Prior to such time as the Regional Adminis-
trator establishes field rules for maximum injection
pressure based on data provided pursuant to para-
graph (a)(2)(ii) of this section the owner or opera-
tor shall:
(i) Limit injection pressure to a value which
will not exceed the operating requirements of
§ 144.28(f)(3)(ii); and
48
-------
§147.2151
(ii) Submit to the Regional Administrator data
acceptable to the Regional administrator which de-
fines the fracture pressure of the formation in
which injection is taking place. A single test may
be submitted on behalf of two or more operators
conducting operations in the same formation, if the
Regional Administrator approves such submission.
(b) Casing and cementing. Where the Regional
Administrator determines that the owner or opera-
tor of an existing enhanced recovery or hydro-
carbon storage well may not be in compliance
with the requirement of §§ 144.28(e) and 146.22,
the owner or operator shall when required by the
Regional Administrator:
(1) Protect USDWs by:
(i) Cementing surface casing by recirculating
the cement to the surface from a point 50 feet
below the lowermost USDW; or
(ii) Isolating all USDWs by placing cement be-
tween the outermost casing and the well bore; and
(2) Isolate any injection zones by placing suffi-
cient cement to fill the calculated space between
the casing and the well bore to a point 250 feet
above the injection zone; and
(3) Use cement:
(i) Of sufficient quantity and quality to with-
stand the maximum operation pressure;
(ii) Which is resistant to deterioration from for-
mation and injection fluids; and
(iii) In a quantity no less than 120% of the cal-
culated volume necessary to cement off a zone;
and/or
(4) Comply with other requirements which the
Regional Administrator may specify in addition to
or in lieu of the requirements set forth in para-
graphs (b) (1) through (3) of this section as need-
ed to protect USDWs.
[49 FR 45308, Nov. 15, 1984]
§ 147.2104 Requirements for all wells.
(a) The owner or operator converting an exist-
ing well to an injection well shall check the condi-
tion of the casing with one of the following log-
ging tools;
(1) A pipe analysis log; or
(2) A caliper log.
(b) The owner or operator of a new injection
well cased with plastic (PVC, ABS, or others) cas-
ings shall:
(1) Not construct a well deeper than 500 feet;
(2) Use cement and additives compatible with
such casing material; and
(3) Cement the annular space above the injec-
tion intermal from the bottom of the blank casing
to the surface.
(c) The owner or operator of a newly drilled
well shall install centralizers as directed by the
Regional Administrator.
(d) The owner or operator shall as required by
the Regional Administrator:
(1) Protect USDWs by:
(i) Setting surface casing 50 feet below the low-
ermost USDW;
(ii) Cementing surface casing by recirculating
the cement to the surface from a point 50 feet
below the lowermost USDW; or
(iii) Isolating all USDWs by placing cement be-
tween the outermost casing and the well bore; and
(2) Isolate any injection zones by placing suffi-
cient cement to fill the calculated space between
the casing and the well bore to a point 250 feet
above the injection zone; and
(3) Use cement:
(i) Of sufficient quantity and quality to with-
stand the maximum operating pressure; and
(ii) Which is resistant to deterioration from for-
mation and injection fluids; and
(iii) In a quantity no less than 120% of the cal-
culated volume necessary to cement off a zone.
(4) The Regional Administrator may approve al-
ternate casing and cementing practices provided
that the owner or operator demonstrates that such
practices will adequately protect USDWs.
(e) Area of review. Notwithstanding the alter-
natives presented in § 146.6 of this chapter, the
area of review shall be a fixed radius as described
in § 146.6(b) of this chapter.
(f) The applicant must give separate notice of
intent to apply for a permit to each owner of
record of the land within one-quarter mile of the
site. The addresses of those to whom notice is
given and the description of how notice was given
shall be submitted with the permit application. The
notice shall include:
(1) The name and address of applicant;
(2) A brief description of the planned injection
activities, including well location, name and depth
of the injection zone, maximum injection pressure
and volume, and fluid to be injected;
(3) The EPA contact person; and
(4) A statement that opportunity to comment
will be announced after EPA prepares a draft per-
mit.
This requirement may be waived by the Regional
Administrator if he determines that individual no-
tice to all land owners of record would be imprac-
tical.
[49 FR 45308, Nov. 15, 1984]
Subpart RR—Tennessee
§147.2150 State-administered pro-
gram. [Reserved]
§ 147.2151 EPA-administered program.
(a) Contents. The UIC program for the State of
Tennessee, including all Indian lands, is adminis-
49
-------
§147.2153
tered by EPA. This program consists of the UIC
program requirements of 40 CFR parts 124, 144,
146, 148, and any additional requirements set forth
in the remainder of this subpart. Injection well
owners and operators, and EPA shall comply with
these requirements.
(b) Effective dates. Effective date for the UIC
program on Indian lands is November 25, 1988.
The effective date for the UIC program for the
rest of Tennessee is June 25, 1984.
[53 FR 43090, Oct. 25, 1988, as amended at 56 FR 9419,
Mar. 6, 1991]
§147.2152 Aquifer
served]
exemptions. [Re-
§147.2153 Existing Class I, II (except
enhanced recovery and hydro-
carbon storage) and III wells au-
thorized by rule.
Maximum injection pressure. The owner or op-
erator shall limit injection pressure to the lesser of:
(a) A value which will not exceed the operating
requirements of § 144.28(f)(3) (i) or (ii) as applica-
ble or
(b) A value for well head pressure calculated by
using the following formula:
Pm=(0.600-0.433 Sg)d
where
Pm=injection pressure at the well head in pounds per
square inch
Sg=specific gravity of inject fluid (unitless)
d=injection depth in feet.
§147.2154 Existing Class II enhanced
recovery and hydrocarbon storage
wells authorized by rule.
(a) Maximum injection pressure. (1) To meet
the operating requirements of § 144.28(f)(3)(ii) (A)
and (B) of this chapter, the owner or operator:
(i) Shall use an injection pressure no greater
than the pressure established by the Regional Ad-
ministrator for the field or formation in which the
well is located. The Regional Administrator shall
establish such a maximum pressure after notice,
opportunity for comment, and opportunity for a
public hearing, according to the provisions of part
124, subpart A of this chapter, and will inform
owners and operators in writing of the applicable
maximum pressure; or
(ii) May inject at pressures greater than those
specified in paragraph (a)(l)(i) of this section for
the field or formation in which he is operating,
provided he submits a request in writing to the
Regional Administrator and demonstrates to the
satisfaction of the Regional Administrator that
such injection pressure will not violate the require-
ment of § 144.28(f)(3)(ii) (A) and (B). The Re-
gional Administrator may grant such a request
after notice, opportunity for comment, and oppor-
tunity for a public hearing, according to the provi-
sions of part 124, subpart A of this chapter.
(2) Prior to such time as the Regional Adminis-
trator establishes rules for maximum injection
pressure based on data provided pursuant to para-
graph (a)(2)(ii) of this section the owner or opera-
tor shall:
(i) Limit injection pressure to a value which
will not exceed the operating requirements of
§ 144.28(f)(3)(ii); and
(ii) Submit data acceptable to the Regional Ad-
ministrator which defines the fracture pressure of
the formation in which injection is taking place. A
single test may be submitted on behalf of two or
more operators conducting operations in the same
formation, if the Regional Administrator approves
such submission. The data shall be submitted to
the Regional Administrator within one year of the
effective date of this regulation.
(b) Casing and cementing. Where the Regional
Administrator determines that the owner or opera-
tor of an existing enhanced recovery or hydro-
carbon storage well may not be in compliance
with the requirements of §§ 144.28(e) and 146.22,
the owner or operator shall comply with para-
graphs (b) (1) through (4) of this section, when re-
quired by the Regional Administrator:
(1) Protect USDWs by:
(i) Cementing surface casing by recirculating
the cement to the surface from a point 50 feet
below the lowermost USDW; or
(ii) Isolating all USDWs by placing cement be-
tween the outermost casing and the well bore; and
(2) Isolate any injection zones by placing suffi-
cient cement to fill the calculated space between
the casing and the well bore to a point 250 feet
above the injection zone; and
(3) Use cement:
(i) Of sufficient quantity and quality to with-
stand the maximum operating pressure;
(ii) Which is resistant to deterioration from for-
mation and injection fluids; and
(iii) In a quantity no less than 120% of the cal-
culated volume necessary to cement off a zone.
(4) The Regional Administrator may specify
other requirements in addition to or in lieu of the
requirements set forth in paragraphs (b) (1)
through (3) of this section, as needed to protect
USDWs.
§147.2155 Requirements for all wells-
area of review.
Notwithstanding the alternatives presented in
§ 146.6 of this chapter, the area of review shall be
a minimum fixed radius as described in § 146.6(b)
of this chapter.
50
-------
§147.2201
Sub pa it SS—Texas
§147.2200 State-administered pro-
gram—Class I, III, IV, and V wells.
Requirements for Class I, III, IV, and V veils.
The UIC program for Class I, III, IV, and V wells
in the State of Texas, except for those wells on In-
dian lands, is the State-administered program ap-
proved by EPA pursuant to section 1422 of the
SDWA. Notice of this approval was published on
January 6, 1982 (47 FR 618); the effective date of
this program is February 7, 1982. This program
consists of the following elements, as submitted to
EPA in the State's program application:
(a) Incorporation by reference. The require-
ments set forth in the State statutes and regulations
cited in this paragraph are hereby incorporated by
reference and made a part of the applicable UIC
program under the SDWA for the State of Texas.
This incorporation by reference was approved by
the Director of the Federal Register on June 25,
1984.
(1) Injection Well Act, Texas Water Code sec-
tions 27.002, 27.011 (Vernon Supp. 1984);
(b) Other laws. The following statutes and regu-
lations, although not incorporated by reference ex-
cept for select sections identified in paragraph (a)
of this section, are also part of the approved State-
administered UIC program:
(1) Texas Water Code Annotated, Chapter 5
(Vernon 1972 and Supp. 1982);
(2) Injection Well Act, Texas Water Code An-
notated, Chapter 27 (Vernon 1972 and Supp.
1982);
(3) Rules of Texas Department of Water Re-
sources, Chapter 27; Rules of Texas Water Devel-
opment Board, Chapter 22.
(c) The Memorandum of Agreement between
EPA Region VI and the Texas Department of
Water Resources, signed by the EPA Regional Ad-
ministrator on October 11, 1981.
(d) Statement of legal authority. ' 'Underground
Injection Control Program—Attorney General's
Statement for Class I, III, IV, and V Injection
Wells," signed by the Attorney General of Texas,
June 11, 1981.
(e) The Program Description and any other ma-
terials submitted as part of the application or as
supplements thereto.
(f) Certain Class V wells are under the UIC
program of the Texas Railroad Commission ap-
proved on April 23, 1982, under the authorities
cited in § 147.2201 of this part.
[49 FR 20197, May 11, 1984, as amended at 53 FR
43091, Oct. 25, 1988]
§147.2201 State-administered pro-
gram—Class II wells
The UIC program for Class II wells in the State
of Texas, except for those wells on Indian lands,
is the program administered by the Railroad Com-
mission of Texas, approved by EPA pursuant to
section 1425 of the SDWA. Notice of this ap-
proval was published in the FEDERAL REGISTER on
April 23, 1982 (47 FR 17488). The effective date
of this program was May 23, 1982. This program
consists of the following elements, as submitted to
EPA in the State's program application:
(a) Incorporation by reference. The require-
ments set forth in the State statutes and regulations
cited in this paragraph are hereby incorporated by
reference and made a part of the applicable UIC
program under the SDWA for the State of Texas.
This incorporation by reference was approved by
the Director of the Federal Register on June 25,
1984.
(1) Injection Well Act, Texas Water Code An-
notated sections 27.031 and 27.033 (Vernon Supp.
1984);
(2) Texas Natural Resources Code Annotated
sections 85.041, 85.045, 85.046 and 85.052 (Ver-
non 1978 and Supp. 1982);
(3) Rules Having Statewide General Application
to Oil, Gas, and Geothermal Resource Operations,
sections .051.02.02.000 to .051.02.02.080 (Rail-
road Commission of Texas, Oil and Gas Division,
Revised 12-22-81), amended as follows:
(i) Amendment to 16 TAG section 3.9 (section
.051.02.02.009) issued December 21, 1981, effec-
tive April 1, 1982;
(ii) Amendment to 16 TAG section 3.46 (section
.051.02.02.046) issued December 21, 1981, effec-
tive April 1, 1982.
(iii) Amendment to 16 TAG section 3.71 (sec-
tion .051.02.02.074) issued December 21, 1981,
effective April 1, 1982.
(b) Other laws. The following statutes and regu-
lations, although not incorporated by reference, are
also part of the approved State-administered UIC
program:
(1) Texas Water Code, Chapters 26, 27 and 29
(Vernon 1972 and Supp. 1982);
(2) Texas Natural Resources Code, Chapters 81,
85-89, 91 and 141 (Vernon 1978 and Supp.
1982);
(3) General Rules of Practice and Procedure,
Subchapters A-J (Railroad Commission of Texas,
adopted November 24, 1975, revised December
1980).
(c)(l) The Memorandum of Agreement between
EPA Region VI and the Railroad Commission of
Texas, signed by the EPA Regional Administrator
on March 24, 1982.
(2) Letter from Director of Underground Injec-
tion Control, Railroad Commission of Texas, to
51
-------
§147.2205
Chief, Ground Water Protection Section, EPA Re-
gion VI, "Re: Letter of Clarification—UIC Pro-
gram Application," March 21, 1982.
(d) Statement of legal authority. "Statement of
Legal Authority of the Railroad Commission of
Texas to conduct the Underground Injection Con-
trol Program," signed by Special Counsel, Rail-
road Commission of Texas, as submitted with
"State of Texas Underground Injection Control
Program Application for Primacy Enforcement
Authority," prepared by the Railroad Commission
of Texas, January 15, 1982.
(e) The Program Description and any other ma-
terials submitted as part of the application or as
supplements thereto.
[49 FR 20197, May 11, 1984, as amended at 53 FR
43091, Oct. 25, 1988]
§147.2205 EPA-administered pro-
gram—Indian lands.
(a) Contents. The UIC program for all classes of
wells on Indian lands in the State of Texas is ad-
ministered by EPA. This program consists of the
UIC program requirements of 40 CFR parts 124,
144, 146, 148, and any additional requirements set
forth in the remainder of this subpart. Injection
well owners and operators, and EPA shall comply
with these requirements.
(b) Effective date. The effective date for the In-
dian lands program for the State of Texas is No-
vember 25, 1988.
[53 FR 43091, Oct. 25, 1988, as amended at 56 FR 9419,
Mar. 6, 1991]
Subpart TT—Utah
§147.2250 State-administered pro-
gram—Class I, III, IV, and V wells.
The UIC program for Class I, III, IV, and V
wells in the State of Utah, except those on Indian
lands, is administered by the Utah Department of
Health, Division of Environmental Health, ap-
proved by EPA pursuant to Section 1422 of the
SDWA. Notice of this approval was published in
the FEDERAL REGISTER on January 9, 1983 (47 FR
2321). The effective date of this program is Feb-
ruary 10, 1983. Changes to Utah's regulations for
Class I wells were made on May 15, 1990, in re-
sponse to modification of national rules as promul-
gated by 53 FR 28188, July 26, 1988. Utah's rules
were effective July 20, 1990. The revised rules,
Program Description, Attorney General's state-
ment, and Memorandum of Agreement were ap-
proved as a minor program modification on Octo-
ber 3, 1990. This program consists of the follow-
ing elements as submitted to EPA:
(a) Incorporation by reference. The require-
ments set forth in the State statutes and regulations
cited in this paragraph are hereby incorporated by
reference and made a part of the applicable UIC
program under the SDWA for the State of Utah.
This incorporation by reference was approved by
the Director of the Federal Register on June 25,
1984.
(1) Utah Water Pollution Control Act, Utah
Code Annotated, Title 26, Chapter 11, Sections 2,
8, and 10 (1989);
(2) Underground Injection Control Regulations;
Utah Administrative Code, Section R448-7 (effec-
tive as of January 2, 1990);
(3) Underground Injection Control Program
(adopted January 20, 1982 and revised effective
July 20, 1990) (Officially submitted to EPA by the
Executive Secretary of Utah Water Pollution Con-
trol Committee on August 16, 1990).
(b) Other laws. The following statutes and regu-
lations, although not incorporated by reference ex-
cept for selected sections identified in paragraph
(a) of this section, are also part of the approved
State-administered program:
(1) Utah Pollution Control Act, Utah Code An-
notated, Sections 26-11-1 through -20 (Supp.
1990);
(c)(l) The revised Memorandum of Agreement
between EPA, Region VIII and the Utah Depart-
ment of Health, Division of Environmental Health,
signed by the Regional Administrator on October
3, 1990.
(2) Letter from Director, Utah Department of
Health, Division of Environmental Health, Bureau
of Water Pollution Control, to EPA Region VIII,
Re: Underground Injection Control Program—
Utah, March 15, 1982;
(3) Letter from the Executive Secretary of the
Utah Water Pollution Control Committee to EPA
Region VIII, "Re: Utah UIC Class I Well Pro-
gram Changes," August 16, 1990;
(d) Statement of legal authority. (1) "Under-
ground Injection Control Program—Attorney Gen-
eral's statement," signed by Attorney General,
State of Utah, January, 1982;
(2) Letter from Assistant Attorney General of
Utah to Chief, Drinking Water Branch, EPA Re-
gion VIII, June 18, 1982;
(3) Addendum to Underground Injection Control
Program, Attorney General's Statement signed by
Attorney General of Utah, August 10, 1990.
(e) The Program Description (revised June 19,
1990) and any other materials submitted as part of
the application or supplements thereto.
[56 FR9419, Mar. 6, 1991]
§147.2251 State-administered pro-
gram—Class II wells.
The UIC program for Class II wells in the State
of Utah, except those on Indian lands, is the pro-
gram administered by the Utah Department of
52
-------
§147.2300
Natural Resources, Division of Oil, Gas, and Min-
ing, approved by EPA pursuant to section 1425 of
the SDWA. Notice of this approval was published
in the FEDERAL REGISTER on October 8, 1982 (47
FR 44561); the effective date of this program is
November 7, 1982. This program consists of the
following elements, as submitted to EPA in the
State's program application:
(a) Incorporation by reference. The require-
ments set forth in the State statutes and regulations
cited in this paragraph are hereby incorporated by
reference and made a part of the applicable UIC
program under the SDWA for the State of Utah.
This incorporation by reference was approved by
the Director of the Federal Register on June 25,
1984.
(1) Utah Code Annotated, 1953, section 40-6-
1 through 40-6-18, as amended 1988 and Cumm.
Supp. 1990;
(2) The Oil and Gas Conservation General
Rules, adopted under the authority of the Oil and
Gas Conservation Act, 40-6-1 et seq., Utah Code
Annotated, as amended 1988 (revised March
1989), rules R615-1 through R615^t, and R615-
8 through R615-10.
(b) Other laws. [Reserved]
(c)(l) The Memorandum of Agreement between
EPA, Region VIII and the Utah Department of
Natural Resources, Division of Oil, Gas, and Min-
ing and the Board of Oil, Gas and Mining, signed
by the EPA Regional Administrator on July 19,
1983;
(2) Letter from Director, Division of Oil, Gas
and Mining, Utah Department of Natural Re-
sources and Energy, to Regional Administrator,
EPA Region VIII, "Re: Aquifer Exemption Proc-
ess," June 16, 1982;
(3) "Memorandum of Understanding" between
Utah Department of Health and Utah Department
of Natural Resources, dated March 5, 1981;
(4) "Second Addition to Agreement between
the Department of Health and the Department of
Natural Resources and Energy," dated December
15, 1981.
(d) Statement of legal authority. (1) Part III of
"Primacy Application—Class II Underground In-
jection Wells," consisting of "Synopsis of Perti-
nent Statutes and Regulations," "Statement of
Legal Authority," and "Certification by the Attor-
ney General," by Assistant Attorney General, De-
partment of Natural Resources and Energy, dated
December 18, 1981;
(2) Letter from Assistant Attorney General,
State of Utah, to EPA Region VIII, undated, re-
ceived in the EPA Office of Regional Counsel
June 10, 1982.
(3) Memorandum to Director, Division of Oil,
Gas and Mining from Assistant Attorney General
regarding Underground Injection Control Program,
January 8, 1985.
(e) The Program Description and any other ma-
terials submitted as part of the application or
amendments thereto.
[49 FR 20197, May 11, 1984, as amended at 53 FR
43091, Oct. 25, 1988; 56 FR 9420, Mar. 6, 1991]
§147.2253 EPA-administered pro-
gram—Indian lands.
(a) Contents. The UIC program for all classes of
wells on Indian lands in the State of Utah is ad-
ministered by EPA. The program for wells on the
lands of the Navajo and Ute Mountain Ute con-
sists of the requirements set forth at subpart HHH
of this part. The program for all other wells on In-
dian lands consists of the UIC program require-
ments of 40 CFR parts 124, 144, 146, 148, and
any additional requirements set forth in the re-
mainder of this subpart. Injection well owners and
operators, and EPA shall comply with these re-
quirements.
(b) Effective date. The effective date for this
program for all other Indian lands in Utah (as well
as for the program of the Navajo and Ute Moun-
tain Ute) is November 25, 1988.
[53 FR 40391, Oct. 25, 1988, as amended at 56 FR 9420,
Mar. 6, 1991] h
Subpart UU—Vermont
§147.2300 State-administered pro-
gram.
The UIC program for all classes of wells in the
State of Vermont, except those wells on Indian
lands, is the program administered by the Vermont
Department of Environmental Conservation, ap-
proved by EPA pursuant to section 1422 of the
SDWA. Notice of this approval was published in
the FR on June 22, 1984; the effective date of this
program is July 6, 1984. This program consists of
the following elements:
(a) Incorporation by reference. The require-
ments set forth in the State statutes and regulations
cited in this paragraph are hereby incorporated by
reference and made a part of the applicable UIC
program under the SDWA for the State of Ver-
mont. This incorporation by reference was ap-
proved by the Director of the Federal Register
July 6, 1984.
(1) Vt. Stat. Ann. tit. 10, sections 1251, 1259,
1263 (1973 and Supp. 1981), Effective date: July
1, 1982.
(2) Vermont Department of Water Resources
and Environmental Engineering, Chapter 13 Water
Pollution Control Regulations, Subchapter
13.UIC—Underground Injection Control, Dis-
53
-------
§147.2303
charges to Injection Wells, Effective Date: June
21, 1984.
(b) Other laws. The following statutes and regu-
lations although not incorporated by reference,
also are part of the approved State-administered
program:
(1) Vt. Stat. Ann. tit. 10, sections 1251 through
1283 (1973 and Supp. 1981).
(2) Vt. Stat. Ann. tit. 10, sections 901 through
911 (1973 and Supp. 1981).
(3) Vt. Stat. Ann. tit. 3, sections 801 through
847 (1973 and Supp. 1981).
(c)(l) The Memorandum of Agreement between
EPA Region I and the Vermont Agency of Envi-
ronmental Conservation signed by the EPA Re-
gional Administrator on January 16, 1984.
(d) Statement of legal authority. (1) "Vermont
Attorney General's Statement for Classes I, II, III,
IV and V Injection Wells," signed by Attorney
General John J. Easton, Jr., as submitted with Ver-
mont Application for Primary Enforcement Re-
sponsibility to Administer the Underground Water
Source Protection Program Pursuant to the Safe
Drinking Water Act and 40 CFR 145.21 through
145.24 (December 20, 1983).
(e) The Program Description and any other ma-
terials submitted as part of the original application
or as supplements thereto.
(42 U.S.C. 300)
[49 FR 25634, June 22, 1984, as amended at 53 FR
43091, Oct. 25, 1988; 56 FR 9420, Mar. 6, 1991]
§§147.2301—147.2302 [Reserved]
§147.2303 EPA-administered pro-
gram—Indian lands.
(a) Contents. The UIC program for all classes of
wells on Indian lands in the State of Vermont is
administered by EPA. This program consists of the
UIC program requirements of 40 CFR parts 124,
144, 146, 148, and any additional requirements set
forth in the remainder of this subpart. Injection
well owners and operators, and EPA shall comply
with these requirements.
(b) Effective date. The effective date of the UIC
program for Indian lands in Vermont is November
25, 1988.
[53 FR 43091, Oct. 25, 1988, as amended at 56 FR 9420,
Mar. 6, 1991]
§§147.2304—147.2349 [Reserved]
Subpart VV—Virginia
§147.2350 State-administered
gram. [Reserved]
pro-
§147.2351 EPA-administered program.
(a) Contents. The UIC program for the State of
Virginia, including all Indian lands, is adminis-
tered by EPA. This program consists of the UIC
program requirements of 40 CFR parts 124, 144,
146, 148, and any additional requirements set forth
in the remainder of this subpart. Injection well
owners and operators, and EPA shall comply with
these requirements.
(b) Effective dates. The effective date for the
UIC program on Indian lands is November 25,
1988. The effective date for the UIC program for
the remainder of Virginia is June 25, 1984. (53 FR
43091, October 25, 1988).
[56 FR9420, Mar. 6, 1991]
§147.2352 Aquifer
served]
exemptions. [Re-
Subpart WW—Washington
§147.2400 State-administered pro-
gram—Class I, II, III, IV, and V
wells.
The UIC program for Class I, II, III, IV, and V
wells in the State of Washington other than those
on Indian lands, is the program administered by
the Washington Department of Ecology, approved
by EPA pursuant to section 1422 of the SOW A.
Notice of this approval was published in the FED-
ERAL REGISTER on August 9, 1984; the effective
date of this program is September 24, 1984. This
program consists of the following elements, as
submitted to EPA in the State's program
application.
(a) Incorporation by reference. The require-
ments set forth in the State statutes and regulations
cited in this paragraph are hereby incorporated by
reference and made a part of the applicable UIC
program under the SDWA for the State of Wash-
ington. This incorporation by reference was ap-
proved by the Director of the Federal Register ef-
fective September 24, 1984.
(1) Revised Code of Washington section
90.48.020, 90.48.080, 90.48.160, and 90.48.162
(Bureau of National Affairs, 1983 Laws);
(2) Washington Administrative Code sections
173-218-010 to 173-218-110 (Bureau of National
Affairs, 2/29/84);
(3) Washington Administrative Code sections
344-12-001 to 344-12-262 (1983 Ed.)
54
-------
§147.2453
(4) Washington Administrative Code Chapter
173-160 (reprinted May 1988).
(b) Other laws. The following statutes and regu-
lations although not incorporated by reference,
also are part of the approved State-administered
program:
(1) Revised Code of Washington, chapter 34.04
(Bureau of National Affairs, 1981 Laws), entitled
"Administrative Procedure act";
(2) Revised Code of Washington, chapter
43.21A (Bureau of National Affairs, 1980 Laws),
entitled "Department of Ecology," as amended by
1983 Washington Laws, Chapter 270;
(3) Revised Code of Washington, chapter
70.105 (Bureau of National Affairs, 1983 Laws),
entitled "Hazardous Waste Disposal";
(4) Revised Code of Washington, chapter 78.52
(Bureau of National Affairs, 1983 Laws), entitled
"Oil and Gas Conservation";
(5) Revised Code of Washington, chapter 90.48
(Bureau of National Affairs, 1986 Laws), entitled
"Water Pollution Control."
(c)(l) The Memorandum of Agreement between
EPA Region X and the Washington Department of
Ecology, signed by the EPA Regional Adminis-
trator on May 14, 1984;
(2) Memorandum of Agreement between the
Washington Department of Ecology and Oil and
Gas Conservation Committee, Related to the Un-
derground Injection Control Program for the State
of Washington, signed March 23, 1984;
(3) Memorandum of Agreement between the
Washington Department of Ecology and Washing-
ton Department of Natural Resources, Related to
the Underground Injection Control Program for the
State of Washington, signed March 23, 1984;
(4) Memorandum of Agreement between the
Washington Department of Ecology and Depart-
ment of Social and Health Services, Related to the
Underground Injection Control Program for the
State of Washington, signed March 23, 1984;
(d) Statement of legal authority. Letter from At-
torney General of the State of Washington, by
Senior Assistant Attorney General, to Director,
Washington State Department of Ecology, "Re:
Underground Injection Control Regulatory Pro-
gram—Attorney General's Statement," February
28, 1984.
(e) The Program Description and any other ma-
terials submitted as part of the original application
or as supplements thereto.
[49 FR 31876, Aug. 9, 1984, as amended at 56 FR 9420,
Mar. 6, 1991]
§147.2403 EPA-administered pro-
gram—Indian lands.
(a) Contents. The UIC program for all classes of
wells on Indian lands in the State of Washington
is administered by EPA. This program, for all In-
dian lands except those of the Colville Tribe, con-
sists of the UIC program requirements of 40 CFR
parts 124, 144, 146, 148, and any additional re-
quirements set forth in the remainder of this sub-
part. Injection well owners and operators, and
EPA shall comply with these requirements.
(b) Effective date. The effective date for the
UIC program for Indian lands in Washington is
November 25, 1988.
[53 FR 43091, Oct. 25, 1988, as amended at 56 FR 9420,
Mar. 6, 1991]
§147.2404 EPA-administered pro-
gram—Colville Reservation.
(a) The UIC program for the Colville Indian
Reservation consists of a prohibition of all Class
I, II, III and IV injection wells and of a program
administered by EPA for Class V wells. This pro-
gram consists of the UIC program requirements of
40 CFR part 124, 144 and 146 and any additional
requirements set forth in the remainder of this sub-
part. Injection well owners and EPA shall comply
with these requirements. The prohibition on Class
I-IV wells is effective November 25, 1988. No
owner or operator shall construct, operate, main-
tain, convert, or conduct any other injection activ-
ity thereafter using Class I-IV wells.
(b) Owners and operators of Class I, II, III or
IV wells in existence on the effective date of the
program shall cease injection immediately. Within
60 days of the effective date of the program, the
owner or operator shall submit a plan and sched-
ule for plugging and abandoning the well for the
Director's approval. The owner or operator shall
plug and abandon the well according to the ap-
proved plan and schedule.
[53 FR 43091, Oct. 25, 1988]
Subpart XX—West Virginia
§§147.2450—147.2452 [Reserved]
§147.2453 EPA-administered pro-
gram—Indian lands.
(a) Contents. The UIC program for all classes of
wells on Indian lands in the State of West Virginia
is administered by EPA. This program consists of
the UIC program requirements of 40 CFR parts
124, 144, 146, 148, and any additional require-
ments set forth in the remainder of this subpart.
Injection well owners and operators, and EPA
shall comply with these requirements.
(b) Effective date. The effective date for the
UIC program on Indian lands in West Virginia is
November 25, 1988.
[53 FR 43092, Oct. 25, 1988, as amended at 56 FR 9420,
Mar. 6, 1991]
55
-------
§147.2500
§§147.2454—147.2499 [Reserved]
Subpart YY—Wisconsin
§147.2500 State-administered pro-
gram.
The UIC program for Class I, II, III, IV, and V
wells in the State of Wisconsin, other than those
on Indian lands as described in §147.2510, is the
program administered by the Wisconsin Depart-
ment of Natural Resources, approved by EPA pur-
suant to SDWA section 1422. Notice of this ap-
proval was published in the FEDERAL REGISTER on
September 30, 1983 (48 FR 44783); the effective
date of this program is November 30, 1983. This
program consists of a prohibition of all injection
wells except heat pump return flow injection wells
and may be found in the following elements, as
submitted to EPA in the State's program applica-
tion.
(a) Incorporation by reference. The require-
ments set forth in the State statutes and regulations
cited in this paragraph are hereby incorporated by
reference and made a part of the applicable UIC
program under the SDWA for the State of Wis-
consin. This incorporation by reference was ap-
proved by the Director of the OFR in accordance
with 5 U.S.C. 552(a) and 1 CFR part 51. Copies
may be obtained at the Wisconsin Department of
Natural Resources, Box 7921, Madison, Wiscon-
sin, 53707. Copies may be inspected at the Envi-
ronmental Protection Agency, Region V, 77 West
Jackson Boulevard, Chicago, Illinois, 60604, or at
the Office of the Federal Register, 800 North Cap-
itol Street, NW., suite 700, Washington, DC.
(1) Wisconsin Statutes Annotated §§147.015,
147.02 and 147.04 (West 1974 and Supp. 1983);
(2) Chapter NR 112, Well Construction and
Pump Installation, Wisconsin Administrative Code
§§NR 112.03 and 112.20 (October 1981), as
amended by Natural Resources Board Order No.
WQ-25-82, approved by the Natural Resources
Board on August 25, 1982;
(3) Chapter NR 113, Servicing Septic Tanks,
Seepage Pits, Grease Traps or Privies, Wisconsin
Administrative Code §§NR 113.07-113.08 (1979),
as amended by Natural Resources Board Order
No. WQ-25-82, approved by the Wisconsin Natu-
ral Resources Board on August 25, 1982;
(4) Chapter NR 181, Hazardous Waste Manage-
ment, Wisconsin Administrative Code §§NR
181.04-181.415 (1981), as amended June 1985;
(5) Chapter NR 210, Sewage Treatment Works,
Wisconsin Administrative Code §210.05 Natural
Resources Board Order No. WQ-25-82, approved
by the Wisconsin Natural Resources Board on Au-
gust 25, 1982;
(6) Chapter NR 214, Land Application and Dis-
posal of Liquid Industrial Wastes and By-Products,
Wisconsin Administrative Code §§214.03 and
214.08 (1983).
(b) Other laws. The following statutes and regu-
lations, although not incorporated by reference ex-
cept for select sections identified in paragraph (a)
of this section, are also part of the approved State-
administered program:
(1) Chapter 144, Water, Sewage, Refuse, Min-
ing and Air Pollution, Wisconsin Statutes Anno-
tated (West 1974 and Supp. 1983);
(2) Chapter 147, Pollution Discharge Elimi-
nation, Wisconsin Statutes Annotated (West 1974
and Supp. 1983);
(3) Chapter 162, Pure Drinking Water, Wiscon-
sin Statutes Annotated (West 1974 and Supp.
1983);
(4) Laws of 1981, Chapter 20, §2038 (Re: heat
pump injection);
(5) Wisconsin Statutes 803.09(1) (West 1977)
(intervention as of right in civil actions).
(c) Memorandum of Agreement. The Memoran-
dum of Agreement between EPA Region V and
the Wisconsin Department of Natural Resources,
signed by the Regional Administrator on Decem-
ber 6, 1983.
(d) Statement of legal authority. (1) "Attorney
General's Statement," signed by Attorney Gen-
eral, State of Wisconsin;
(2) Letter from Assistant Attorney General,
State of Wisconsin, to EPA Region, "Re: Amend-
ments to Attorney General's Statement-UIC,"
June 30, 1983.
(e) Program Description. The Program Descrip-
tion and other materials submitted as part of the
application or as supplements thereto.
[49 FR 45309, Nov. 15, 1984, as amended at 56 FR
9420, Mar. 6, 1991; 56 FR 14150, Apr. 5, 1991; 62 FR
1834, Jan. 14, 1997]
§147.2510 EPA-administered pro-
gram—Indian lands.
(a) Contents. The UIC program for Indian lands
in the State of Wisconsin is administered by EPA.
This program consists of 40 CFR parts 144 and
146 and additional requirements set forth in this
section. Injection well owners and operators, and
EPA, shall comply with these requirements.
(b) Requirements. Notwithstanding the require-
ments of paragraph (a) of this section for Indian
lands in Wisconsin no owner or operator shall
construct, operate, maintain, or convert any Class
I, II, III, IV or V injection well.
(c) Effective date. The effective date of the UIC
program requirements for Indian lands in Wiscon-
sin is December 30, 1984.
[49 FR 45309, Nov. 15, 1984]
56
-------
§147.2551
Subpart ZZ—Wyoming
§147.2550 State-administered pro-
gram—Class I, III, IV and V wells.
The UIC program for Class I, III, IV and V
wells in the State of Wyoming, except those on
Indian lands is the program administered by the
Wyoming Department of Environmental Quality
approved by EPA pursuant to section 1422 of the
SDWA. Notice of this approval was published in
the FEDERAL REGISTER on July 15, 1983 (48 FR
32344); the effective date of this program is Au-
gust 17, 1983. The program consists of the follow-
ing elements as submitted to EPA in the State's
program application:
(a) Incorporation by reference. The require-
ments set forth in the State statutes and regulations
cited in this paragraph are hereby incorporated by
reference and made a part of the applicable UIC
program under the SDWA for the State of Wyo-
ming. This incorporation by reference was ap-
proved by the Director of the Federal Register on
June 25, 1984.
(1) Wyoming Environmental Quality Act, Wyo-
ming Statutes sections 35-11-101 through 35-11-
115, and 35-11-301 through 35-11-305 (1977
Republished Edition and 1989 Cumm. Supp.);
(2) Water Quality Rules and Regulations, Wyo-
ming Department of Environmental Quality, Chap-
ter III: Regulations for Permit to Construct, Install
or Modify Public Facilities Capable or, (sic) Caus-
ing or Contributing to Pollution (certified copy,
signed December 21, 1983);
(3) Water Quality Rules and Regulations, Wyo-
ming Department of Environmental Quality, Chap-
ter VIII: Quality Standards for Groundwaters of
Wyoming (certified copy, signed April 9, 1980);
(4) Water Quality Rules and Regulations, Wyo-
ming Department of Environmental Quality, Chap-
ter IX: Wyoming Groundwater Pollution Control
Permit (certified copy, signed April 9, 1980);
(5) Water Quality Rules and Regulations, Wyo-
ming Department of Environmental Quality, Chap-
ter XIII: Prohibitions of Permits for New Hazard-
ous Waste Injection Wells (certified copy, signed
August 25, 1989);
(6) Land Quality Rules and Regulations, Wyo-
ming Department of Environmental Quality, Chap-
ter XXI: In Situ Mining (effective March 26,
1981).
(b) Other laws. The following statutes and regu-
lations, although not incorporated by reference ex-
cept for select sections identified in paragraph (a)
of this section, are also part of the approved State-
administered program:
(1) Article 9, Underground Water, Wyoming
Statutes sections 41-3-901 through 41-3-938
(September 1982);
(2) Wyoming Administrative Procedure Act,
Wyoming Statutes sections 9-4—101 through 9-4—
115 (1988);
(3) Department of Environmental Quality Rules
of Practice and Procedure (1982).
(c)(l) The Memorandum of Agreement between
EPA, Region VIII and the Wyoming Department
of Environmental Quality, signed by the EPA Re-
gional Administrator on April 26, 1983.
(2) Letter from Regional Administrator, EPA
Region VIII, to Governor of Wyoming, May 21,
1982, with Attachment (regarding aquifer exemp-
tions);
(3) Letter from Governor of Wyoming to Re-
gional Administrator, EPA Region VIII, "Re: Un-
derground Injection Control (UIC) Program—Aq-
uifer Exemption Issues," June 7, 1982;
(4) Letter from Regional Administrator, EPA
Region VIII to Governor of Wyoming, "Re: Un-
derground Injection Control (UIC) Program—Aq-
uifer Exemption Issues," June 25, 1982;
(5) Letter from Director, Wyoming Department
of Environmental Quality, to Acting Director,
Water Management Division, EPA Region VIII,
December 1, 1982.
(d) Statement of legal authority. (1) "Attorney
General's Statement—Wyoming Statutory and
Regulatory Authority for Assumption of the Un-
derground Injection Control Program Pursuant to
the Federal Safe Drinking Water Act," signed by
Attorney General and Assistant Attorney General
for the State of Wyoming, September 22, 1982;
(2) Letter from Attorney General for the State
of Wyoming to Acting Regional Counsel, EPA
Region VIII, "Re: Wyoming Assumption of the
UIC Program—$36, Chapter IX, Wyoming Water
Quality Rules and Regulations," November 24,
1982.
(e) The Program Description and any other ma-
terials submitted as part of the application or
amendment thereto.
[49 FR 20197, May 11, 1984, as amended at 53 FR
43092, Oct. 25, 1988; 56 FR 9421, Mar. 6, 1991]
§147.2551 State-administered pro-
gram—Class II wells.
The UIC program for Class II wells in the State
of Wyoming, except those on Indian lands, is the
program administered by the Wyoming Oil and
Gas Conservation Commission approved by EPA
pursuant to section 1425 of the SDWA. Notice of
this approval was published in the FR on Novem-
ber 23, 1982 (47 FR 52434); the effective date of
this program is December 23, 1982. This program
consists of the following elements as submitted to
EPA in the State's program application:
(a) Incorporation by reference. The require-
ments set forth in the State statutes and regulations
cited in this paragraph are hereby incorporated by
57
-------
§147.2553
reference and made a part of the applicable UIC
program under the SDWA for the State of Wyo-
ming. This incorporation by reference was ap-
proved by the Director of the OFR in accordance
with 5 U.S.C. 552(a) and 1 CFR Part 51. Copies
may be obtained at the Wyoming Oil and Gas
Conservation Commission, Office of the State Oil
and Gas Supervisor, P.O. Box 2640, 77 West First
Street, Casper, Wyoming, 82602. Copies may be
inspected at the Environmental Protection Agency,
Region VIII, 999 18th Street, Suite 500, Denver,
Colorado, 80202-2405, or at the Office of the
Federal Register, 800 North Capitol Street, NW.,
suite 700, Washington, DC.
(1) Rules and Regulations of the Wyoming Oil
and Gas Conservation Commission, including
Rules of Practice and Procedure, as published by
the Wyoming Oil and Gas Conservation Commis-
sion, August 7, 1990;
(2) Title 30, Chapter 5, Wyoming Statutes, sec-
tions 30-5-101 through 30-5-126 (June 1983 and
Wyoming Statutes Annotated, July 1990 Supp.).
(b) Memorandum of Agreement. (1) The initial
Memorandum of Agreement between EPA, Region
VIII and Wyoming Oil and Gas Conservation
Commission, signed by the EPA Regional Admin-
istrator and the Oil Field Supervisor of the Com-
mission on June 2, 1982;
(2) Amendment No. 1 to the Memorandum of
Agreement, dated December 22, 1982;
(3) Amendment No. 2 to the Memorandum of
Agreement, dated January 25, 1990;
(4) Letter from State Oil and Gas Supervisor,
Wyoming Oil and Gas Conservation Commission,
to the Acting Director, Water Management Divi-
sion, EPA Region VIII, "Re: Application for Pri-
macy in the Regulation of Class II Injection
Wells," March 8, 1982;
(5) Letter from State Oil and Gas Supervisor,
Wyoming Oil and Gas Conservation Commission,
to EPA Region VIII, "Re: Regulation of Liquid
Hydrocarbon Storage Wells Under the UIC Pro-
gram," July 1, 1982;
(6) Memorandum of Agreement Between the
Wyoming State Board of Control, State Engineer,
Oil and Gas Conservation Commission, and the
Department of Environmental Quality, dated Octo-
ber 14, 1981.
(c) Statement of legal authority. (1) "Statement
of Legal Authority" and "State Review of Regu-
lations and Statutes Relevant to the UIC Program-
Class II Wells," signed by Special Assistant At-
torney General for the State of Wyoming, as sub-
mitted with "Wyoming Oil and Gas Conservation
Commission, Application for Primacy in the Regu-
lation of Class II Injection Wells under Section
1425 of the Safe Drinking Water Act," November
1981;
(2) Letter from special Assistant Attorney Gen-
eral for the State of Wyoming to Assistant Re-
gional Counsel, EPA Region VIII, May 13, 1982;
(3) Letter from special Assistant Attorney Gen-
eral for the State of Wyoming to Assistant Re-
gional Counsel, EPA Region VIII, July 1, 1982.
(d) Program Description. The Program Descrip-
tion and other material submitted as part of the ap-
plication or amendments thereto, including the
memorandum to the National UIC Branch report-
ing on Improvement to the Wyoming Oil and Gas
1425 program, dated April 28, 1989.
[56 FR9421, Mar. 6, 1991]
§147.2553 EPA-administered pro-
gram—Indian lands.
(a) Contents. The UIC program for all classes of
wells on Indian lands in the State of Wyoming is
administered by EPA. This program consists of the
UIC program requirements of 40 CFR parts 124,
144, 146, 148, and any additional requirements set
forth in the remainder of this subpart. Injection
well owners and operators, and EPA shall comply
with these requirements.
(b) Effective date. The effective date for the
UIC program on Indian lands in Wyoming is No-
vember 25, 1988.
[53 FR 43092, Oct. 25, 1988, as amended at 56 FR 9422,
Mar. 6, 1991]
§ 147.2554 Aquifer exemptions.
In accordance with §§ 144.7(b) and 146.4 of this
chapter, those portions of aquifers currently being
used for injection in connection with Class II (oil
and gas) injection operations on the Wind River
Reservation, which are described below, are here-
by exempted for the purpose of Class II injection
activity. This exemption applies only to the
aquifers tabulated below, and includes those por-
tions of the aquifers defined on the surface by an
outer boundary of those quarter-quarter sections
dissected by a line drawn parallel to, but one-quar-
ter mile outside, the field boundary, and is re-
stricted to extend no further than one-quarter mile
outside the Reservation boundary. Maps showing
the exact boundaries of the field may be consulted
at the EPA's Region 8 Office, and at the EPA
Headquarters in Washington, DC.
58
-------
§147.2600
AREAS To BE EXEMPTED FOR THE PURPOSE OF CLASS I
RESERVATION
INJECTION ON THE WIND RIVER
Formation
Steamboat Butte Field
Phosphoria
Tensleep
Winkleman Dome Field
Tensleep
Phosphoria
Nugget
Lander Field
Phosphoria
NW Sheldon Field
Crow Mountain and Cleverly
Circle Ridge Field
Tensleep
Phosphoria
Amsden
Rolff Lake Field
Crow Mountain
Approximate
depth
6,500-7,100
6,900-7,500
2,800-3,300
2,800-3,600
1,100-1,500
1,100-3,800
3,400-3,600
1,500-1,800
800-1,800
700-1,200
3,500-3,700
Location
T3N, R1W— W/2 Sec. 4, Sec. 5, E/2 Sec. 6, NE/4
Sec. 8, W/2 Sec. 9.
T4N, R1W— W/2 Sec. 29, E/2 Sec. 30, E/2 Sec. 31,
Sec. 32.
T3N, R1W— W/2 Sec. 4, Sec. 5, E/2 Sec. 6, NE/4
Sec. 8, W/2 Sec. 9.
T4N, R1W— W/2 Sec. 29, E/2 Sec. 30, E/2 Sec. 31,
Sec. 32.
T2N, R1W— SW/4 Sec. 17, Sections 18, 19, 20, 29,
NE/4 Sec. 30.
T2N, R2W— E/2 Sec. 13, NE/4 Sec. 24.
T2N, R1W— SW/4 Sec. 17, Sections 18, 19, 20, 29,
NE/4 Sec. 30.
T2N, R2W— E/2 Sec. 13, NE/4 Sec. 24.
T2N, R1W— SW/4 Sec. 17, Sections 18, 19, 20, 29,
NE/4 Sec. 30.
T2N, R2W— E/2 Sec. 13, NE/4 Sec. 24.
T2S, R1E— Sections 12 and 13, E/2 Sec. 24, NE/4
Sec. 25.
T2S, R2E— W/2 Sec. 18, W/2 Sec. 19, Sec. 30.
T33N, R99W— Sec. 4.
T6N, R3W— SE/4 Sec. 35, SW/4 Sec. 36.
T5N, R3W— N/2Sec. 1.
T6N, R2W— Sec. 6, N/2 Sec. 7.
T7N, R3W— SE/4 Sec. 36.
T7N, R2W— SW/4 Sec. 31.
T6N, R3W— E/2 Sec. 1.
T7N, R3W— S/2 Sec. 36.
T6N, R3W— NE/4 Sec. 1.
T6N, R3W— Sec. 6.
T6N, R3W— SW/4 Sec. 26, NW/4 Sec. 27.
[53 FR 43092, Oct. 25, 1988]
Subpart AAA—Guam
§147.2600 State-administered pro-
gram.
The UIC program for all classes of wells in the
territory of Guam, except those on Indian lands, is
the program administered by the Guam Environ-
mental Protection Agency, approved by EPA pur-
suant to SDWA section 1422. Notice of this ap-
proval was published in the FEDERAL REGISTER on
May 2, 1983 (47 FR 19717); the effective date of
this program is June 1, 1983. This program con-
sists of the following elements, as submitted to
EPA in the State's program application:
(a) Incorporation by reference. The require-
ments set forth in the State statutes and regulations
cited in this paragraph are hereby incorporated by
reference and made a part of the applicable UIC
program under the SDWA for the territory of
Guam. This incorporation by reference was ap-
proved by the Director of the Federal Register on
June 25, 1984.
(1) Water Resources Conservation Act, Govern-
ment Code of Guam sections 57021-57025, Public
Law 9-31 (March 9, 1967), as amended by Public
Law 9-76 (July 29, 1967), as amended by Public
Law 12-191 (December 30, 1974);
(2) Water Pollution Control Act, Government
Code of Guam sections 57042 and 57045, Public
Law 9-76 (July 29, 1967), as amended by Public
Law 9-212 (August 5, 1968), as amended by Pub-
lic Law 10-31 (March 10, 1969), as amended by
Public Law 12-191 (December 30, 1974);
(3) Guam Environmental Protection Agency,
Underground Injection Control Regulations, Chap-
ters 1-9, as revised by amendments adopted Sep-
tember 24, 1982;
(4) Guam Environmental Protection Agency,
Water Quality Standards, Section I-IV (approved
September 25, 1981, effective November 16,
1981).
(b) Other laws. The following statutes and regu-
lations, although not incorporated by reference ex-
59
-------
§147.2601
cept for specific sections identified in paragraph
(a) of this section, are also part of the approved
State-administered program:
(1) Government Code of Guam, Title XXV,
Chapters I-III (sections 24000-24207);
(2) Government Code of Guam, Title LXI,
Chapters I-III (sections 57000-57051);
(3) Government Code of Guam, Title LXI,
Chapters VI (sections 57120-57142);
(4) Government Code of Guam, Title LXI,
Chapters VIII (sections 57170-57188);
(5) Government Code of Guam, Title LXI,
Chapters XII (sections 57285-57299);
(c) The Memorandum of Agreement between
EPA, Region IX and the Guam Environmental
Protection Agency signed by the Regional Admin-
istrator on January 14, 1983.
(d) Statement of legal authority. (1) Letter from
Attorney General of Guam to Regional Adminis-
trator, Region IX, "Re: Attorney General's State-
ment for Underground Injection Control Program
(UIC), Ground Water Program Guidance #16"
May 12, 1982;
(2) Letter from Attorney General of Guam to
Regional Administrator, Region IX, "Re: Addi-
tional comments to be incorporated into the May
12, 1982, Attorney General's Statement for Under-
ground Injection Control Program," September 2,
1982.
(e) The Program Description and any other ma-
terials submitted as part of the application or
amendments thereto.
[49 FR 20197, May 11, 1984, as amended at 53 FR
43092, Oct. 25, 1988]
§147.2601 EPA-administered pro-
gram—Indian lands.
(a) Contents. The UIC program for Indian lands
in the territory of Guam is administered by EPA.
This program consists of the UIC program require-
ments of 40 CFR parts 124, 144, 146, 148, and
any additional requirements set forth in the re-
mainder of this subpart. Injection well owners and
operators, and EPA shall comply with these re-
quirements.
(b) Effective date. The effective date for the
UIC program on Indian lands in the territory of
Guam is November 25, 1988.
[53 FR 43093, Oct. 25, 1988, as amended at 56 FR 9422,
Mar. 6, 1991]
Subpart BBB—Puerto Rico
§147.2650 State-administered pro-
gram—Class I, II, III, IV, and V
wells.
The Underground Injection Control Program for
all classes of wells in the Commonwealth of Puer-
to Rico, other than those on Indian lands, is the
program administered by Puerto Rico's Environ-
mental Quality Board (EQB), approved by the
EPA pursuant to the Safe Drinking Water Act
(SOWA) section 1422. This program consists of
the following elements, as submitted to EPA in the
Commonwealth's program application.
(a) Incorporation by reference. The require-
ments set forth in the State statutes and regulations
cited in this paragraph are hereby incorporated by
reference and made a part of the applicable UIC
program under the SDWA for the Commonwealth
of Puerto Rico. This incorporation by reference
was approved by the Director of the Federal Reg-
ister in accordance with 5 U.S.C. 552(a) and 1
CFR part 51. Copies may be obtained or inspected
at the following locations: EPA, Region II, 26
Federal Plaza, room 845, New York, NY 10278;
EPA, Headquarters, 401 M Street, SW., room
El 101 A, Washington, DC 20460; or the Office of
the Federal Register, 800 North Capitol Street
NW., suite 700, Washington, DC.
(1) Underground Injection Control Regulations
of the Commonwealth of Puerto Rico, Parts I
through V and appendices A and B, adopted Sep-
tember 14, 1983 (Amended July 20, 1988).
(2) Puerto Rico Public Policy Environmental
Act (PRPPE), Title 12 Laws of Puerto Rico Anno-
tated (LPRA) Chapters 121 and 131, 1977 edition,
as amended 1988 edition, and Chapter 122, 1988
edition.
(b) Memorandum of Agreement. The Memoran-
dum of Agreement between EPA Region II and
the Commonwealth of Puerto Rico's EQB signed
by the Regional Administrator on August 23,
1991.
(c) Statement of legal authority. (1) Attorney
General's statement on the Commonwealth of
Puerto Rico's Authority to apply for, assume and
carry out the UIC Program, dated June 26, 1987.
(2) Letter from the Governor of the Common-
wealth of Puerto Rico requesting the program,
dated July 16, 1987.
(d) Program description. The Description of the
Commonwealth of Puerto Rico's Underground In-
jection Control Program, dated with the effective
date October 30, 1986.
[57 FR 33446, July 29, 1992]
§147.2651 EPA-administered pro-
gram— Indian lands.
(a) Contents. The UIC program for all classes of
wells on Indian lands in the Commonwealth of
Puerto Rico is administered by EPA. This program
consists of the UIC program requirements of 40
CFR parts 124, 144, 146, 148 and any additional
requirements set forth in the remainder of this sub-
part. Injection well owners and operators and EPA
shall comply with the requirements.
60
-------
(b) Effective date. The effective date for the
UIC program on Indian Lands in the Common-
wealth of Puerto Rico is November 25, 1988.
[57 FR 33446, July 29, 1992]
Sub pa it CCC—Virgin Islands
§147.2700 State-administered
gram. [Reserved]
pro-
§147.2701 EPA-administered program.
(a) Contents. The UIC program for the Virgin
Islands, including all Indian lands, is administered
by EPA. This program consists of the UIC pro-
gram requirements of 40 CFR parts 124, 144, 146,
148, and any additional requirements set forth in
the remainder of this subpart. Injection well own-
ers and operators, and EPA shall comply with
these requirements.
(b) Effective dates. The effective date of the
UIC program for non-Indian lands in the Virgin
Islands is December 30, 1984. The effective date
for Indian lands in the Virgin Islands is November
25, 1988.
[53 FR 43093, Oct. 25, 1988, as amended at 56 FR 9422,
Mar. 6, 1991]
Subpart ODD—American Samoa
§147.2750 State-administered pro-
gram. [Reserved]
§147.2751 EPA-administered program.
(a) Contents. The UIC program for American
Samoa, including all Indian lands, is administered
by EPA. This program consists of the UIC pro-
gram requirements of 40 CFR parts 124, 144, 146,
148, and any additional requirements set forth in
the remainder of this subpart. Injection well own-
ers and operators, and EPA shall comply with
these requirements.
(b) Effective dates. The effective date for the
UIC program on non-Indian lands is June 25,
1984. The effective date of the UIC program on
Indian lands is November 25, 1988.
[53 FR 43093, Oct. 25, 1988, as amended at 56 FR 9422,
Mar. 6, 1991]
§147.2752 Aquifer
served]
§147.2800
exemptions. [Re-
Subpart EEE—Commonwealth of
the Northern Mariana Islands
§147.2800 State-administered pro-
gram—Class I, II, III, IV, and V
wells.
The UIC program for Class I, II, III, IV, and V
wells in the Commonwealth of the Northern Mari-
ana Islands, other than those on Indian lands, is
the program administered by the Commonwealth
of the Northern Mariana Islands Division of Envi-
ronmental Quality approved by EPA pursuant to
Section 1422 of the SOW A. Notice of this ap-
proval was published in the FEDERAL REGISTER on
January 18, 1985; the effective date of this pro-
gram is August 30, 1985. This program consists of
the following elements, as submitted to EPA in the
State's program application.
(a) Incorporation by reference. The require-
ments set forth in the State statutes and regulations
cited in this paragraph are hereby incorporated by
reference and made a part of the applicable UIC
program under the SDWA for the Commonwealth
of the Northern Mariana Islands. This incorpora-
tion by reference was approved by the Director of
the Federal Register effective July 31, 1985.
(1) CNMI Environmental Protection Act, 2
CMC sections 3101, et seq. (1984);
(2) CNMI Coastal Resources Management Act,
2 CMC sections 1501, et seq. (1984);
(3) CNMI Drinking Water Regulations, Com-
monwealth Register, Volume 4, Number 4 (August
15, 1982);
(4) CNMI Underground Injection Control Regu-
lations, Commonwealth Register, Volume 6, Num-
ber 5 (May 15, 1984, amended November 15,
1984, January 15, 1985);
(5) CNMI Coastal Resources Management Reg-
ulations, Commonwealth Register, Volume 6,
Number 12, December 17, 1984.
(b)(l) The Memorandum of Agreement between
EPA Region IX and the Commonwealth of the
Northern Mariana Islands Division of Environ-
mental Quality, signed by the EPA Regional Ad-
ministrator on May 3, 1985;
(c) Statement of legal authority. Statement from
Attorney General Commonwealth of the Northern
Mariana Islands, "Underground Injection Control
Program—Attorney General's Statement," signed
on October 10, 1984.
(d) The Program Description and any other ma-
terials submitted as part of the original application
or as supplements thereto.
[50 FR 28943, July 17, 1985]
61
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§147.2801
§147.2801 EPA-administered program.
(a) Contents. The UIC program for Indian lands
in the Commonwealth of the Northern Mariana Is-
lands is administered by EPA. This program con-
sists of the UIC program requirements of 40 CFR
parts 124, 144, 146, 148, and any additional re-
quirements set forth in the remainder of this sub-
part. Injection well owners and operators, and
EPA shall comply with these requirements.
(b) Effective date. The effective date of the UIC
program for Indian lands is November 25, 1988.
[53 FR 43093, Oct. 25, 1988, as amended at 56 FR 9422,
Mar. 6, 1991]
§147.2802 Aquifer
served]
exemptions. [Re-
Subpart FFF—Trust Territory of the
Pacific Islands
§147.2850 State-administered
gram. [Reserved]
pro-
§147.2851 EPA-administered program.
(a) Contents. The UIC program for Trust Terri-
tory of the Pacific Islands, including all Indian
lands, is administered by EPA. This program con-
sists of the UIC program requirements of 40 CFR
parts 124, 144, 146, 148, and any additional re-
quirements set forth in the remainder of this sub-
part. Injection well owners and operators, and
EPA shall comply with these requirements.
(b) Effective dates. The effective date of the
UIC program for non-Indian lands of the Trust
Territory of the Pacific Islands is June 25, 1984.
The effective date for the Indian lands is Novem-
ber 25, 1988.
[53 FR 43093, Oct. 25, 1988, as amended at 56 FR 9422,
Mar. 6, 1991]
§147.2852 Aquifer exemptions. [Re-
served]
Subpart GGG—Osage Mineral
Reserve—Class II Wells
AUTHORITY: Safe Drinking Water Act, 42 U.S.C. 300h.
SOURCE: 49 FR 45309, Nov. 15, 1984, unless otherwise
noted.
§147.2901 Applicability and scope.
This subpart sets forth the rules and permitting
requirements for the Osage Mineral Reserve,
Osage County, Oklahoma, Underground Injection
Control Program. The regulations apply to owners
and operators of Class II injection wells located on
the Reserve, and to EPA.
§147.2902 Definitions.
Most of the following terms are defined in
§ 144.3, and have simply been reproduced here for
the convenience of the reader. This section also in-
cludes definitions of some terms unique to the
Osage program. Terms used in this subpart are de-
fined as follows:
Administrator—the Administrator of the United
States Environmental Protection Agency, or an au-
thorized representative.
Aquifer—a geologic formation, group of forma-
tions, or part of a formation that is capable of
yielding a significant amount of water to a well or
spring.
BIA—The "Bureau of Indian Affairs," United
States Department of Interior.
Casing—a pipe or tubing of varying diameter
and weight, lowered into a borehole during or
after drilling in order to support the sides of the
hole and, thus, prevent the walls from caving, to
prevent loss of drilling mud into porous ground, or
to prevent water, gas, or other fluid from entering
the hole.
Cementing—the operation whereby a cement
slurry is pumped into a drilled hole and/or forced
behind the casing.
Class II Wells—wells which inject fluids:
(a) Which are brought to the surface in connec-
tion with conventional oil or natural gas produc-
tion and may be commingled with waste waters
from gas plants which are an integral part of pro-
duction operations, unless those waters would be
classified as a hazardous waste at the time of in-
jection;
(b) For enhanced recovery of oil or natural gas;
and
(c) For storage of hydrocarbons which are liquid
at standard temperature and pressure.
Existing Class II Wells—wells that were author-
ized by BIA and constructed and completed before
the effective date of this program.
New Class II Wells—wells constructed or con-
verted after the effective date of this program, or
which are under construction on the effective date
of this program.
Confining bed—a body of impermeable or dis-
tinctly less permeable material stratigraphically ad-
jacent to one or more aquifers.
Confining zone—a geologic formation, group of
formations, or part of a formation that is capable
of limiting fluid movement above an injection
zone.
Contaminant—any physical, chemical, biologi-
cal, or radiological substance or matter in water.
Disposal well—a well used for the disposal of
waste into a subsurface stratum.
EPA—The United States Environmental Protec-
tion Agency.
62
-------
§147.2905
Fault—a surface or zone of rock fracture along
which there has been displacement.
Fluid—material or substance which moves or
flows whether in a semisolid, liquid, sludge, gas or
any other form or state.
Formation—a body of rock characterized by a
degree of lithologic homogeneity which is
prevailingly, but not necessarily, tabular and is
mappable on the earth's surface or traceable in the
subsurface.
Freshwater—"Underground source of drinking
water.''
Ground water—water below the land surface in
a zone of saturation.
Injection well—a well into which fluids are
being injected.
Injection zone—a geological formation, group
of formations, or part of a formation receiving
fluids through a well.
Lithology—the description of rocks on the basis
of their physical and chemical characteristics.
Owner/operator—the owner or operator of any
facility or activity subject to regulation under the
Osage UIC program.
Packer—a device lowered into a well to
produce a fluid-tight seal within the casing.
Permit—an authorization issued by EPA to im-
plement UIC program requirements. Permit does
not include the UIC authorization by rule or any
permit which has not yet been the subject of final
Agency action.
Plugging—the act or process of stopping the
flow of water, oil or gas into or out of a formation
through a borehole or well penetrating that forma-
tion.
Pressure—the total load or force per unit area
acting on a surface.
Regional Administrator—the Regional Adminis-
trator of Region 6 of the United States Environ-
mental Protection Agency, or an authorized rep-
resentative.
Subsidence—the lowering of the natural land
surface in response to: Earth movements; lowering
of fluid pressure; removal of underlying support-
ing material by mining or solution solids, either
artificially or from natural causes; compaction due
to wetting (hydrocompaction); oxidation of organic
matter in soils; or added load on the land surface.
Underground source of drinking water—an aq-
uifer or its portion:
(a)(l) Which supplies any public water system;
or
(2) Which contains a sufficient quantity of
ground water to supply a public water system; and
(i) Currently supplies drinking water for human
consumption; or
(ii) Contains fewer than 10,000 mg/1 total dis-
solved solids; and
(b) Which is not an exempted aquifer.
USDW—underground source of drinking water.
Well—a bored, drilled, or driven shaft, or a dug
hole whose depth is greater than the largest sur-
face dimension.
Well injection—the subsurfac emplacement of
fluids through a bored, drilled, or driven well; or
through a dug well, where the depth of the dug
well is greater than the largest surface dimension.
Well workover—any reentry of an injection
well; including, but not limited to, the pulling of
tubular goods, cementing or casing repairs; and
excluding any routine maintenance (e.g. re-seating
the packer at the same depth, or repairs to surface
equipment).
§147.2903 Prohibition of unauthorized
injection.
(a) Any underground injection, except as author-
ized by permit or rule issued under the UIC pro-
gram, is prohibited. The construction or operation
of any well required to have a permit is prohibited
until the permit has been issued.
(b) No owner or operator shall construct, oper-
ate, maintain, convert, plug, or abandon any injec-
tion well, or conduct any other injection activity,
in a manner that allows the movement of fluid
containing any contaminant into underground
sources of drinking water, if the presence of that
contaminant may cause the violation of any pri-
mary drinking water regulation under 40 CFR part
142 or may otherwise adversely affect the health
of persons. The applicant for a permit shall have
the burden of showing that the requirements of
this paragraph are met.
(c) Injection between the outermost casing pro-
tecting underground sources of drinking water and
the well bore is prohibited.
§ 147.2904 Area of review.
(a) The area of review for an injection well or
project will be a fixed radius of one-forth of a
mile from the well, field or project.
(b) The zone of endangering influence is the lat-
eral area around the injection well or project in
which the injection zone pressures may cause
movement of fluid into an underground source of
drinking water (USDW) if there are improperly
sealed, completed or abandoned wells present. A
zone of endangering influence may be determined
by EPA through the use of an appropriate formula
that addresses the relevant geologic, hydrologic,
engineering and operational features of the well,
field, or project.
§147.2905 Plugging and abandonment.
The owner/operator shall notify the Osage UIC
office within 30 days of the date injection has ter-
minated. The well must be plugged within 1 year
after termination of injection. The Regional Ad-
63
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§147.2906
ministrator may extend the time to plug, but only
if no fluid movement into a USDW will occur,
and the operator has presented a viable plan for
utilizing the well within a reasonable time.
(a) Until an injection well has been properly
plugged and abandoned, annual reports to the Re-
gional Administrator on well status, and mechani-
cal integrity tests as outlined in §§147.2912 and
147.2920 will be required, whether or not injection
has ceased.
(b) All wells shall be plugged to prevent move-
ment of fluid into an USDW.
(c) The owner/operator shall notify the Osage
UIC office by certified mail at least 5 days prior
to the commencement of plugging operations. The
Osage UIC office may waive or reduce the 5-day
notice requirement when a qualified EPA rep-
resentative is available to witness the plugging op-
eration. The following information must be sub-
mitted as part of the notification:
(1) Type and number of plugs to be used;
(2) Elevation of top and bottom of each plug;
(3) Method of plug placement; and
(4) Type, grade and quantity of cement to be
used.
(d) The well shall be kept full of mud as casing
is removed. No surface casing shall be removed
without written approval from the Regional Ad-
ministrator.
(e)(l) If surface casing is adequately set and ce-
mented through all freshwater zones (set to at least
50 feet below the base of freshwater), a plug shall
be set at least 50 feet below the shoe of the casing
and extending at least 50 feet above the shoe of
the casing, or
(2) If the surface casing and cementing is inad-
equate, the well bore shall be filled with cement
from a point 50 feet below the base of fresh water
to a point 50 feet above the shoe of the surface
casing, and any additional plugs as required by the
Osage UIC office and/or the Osage Agency.
(3) In all cases, the top 20 feet of the well bore
below 3 feet of ground surface shall be filled with
cement. Surface casing shall be cut off 3 feet
below ground surface and covered with a secure
steel cap on top of the surface pipe. The remaining
3 feet shall be filled with dirt.
(f)(l) Except as provided in paragraph (f)(2) of
this section, each producing or receiving formation
shall be sealed off with a 50-foot cement plug
placed at the base of the formation and a 50-foot
cement plug placed at the top of the formation.
(2) The requirement in paragraph (f)(l) of this
section does not apply if the producing/receiving
formation is already sealed off from the well bore
with adequate casing and cementing behind casing,
and casing is not to be removed, or the only open-
ings from the producing/receiving formation into
the well bore are perforations in the casing, and
the annulus between the casing and the outer walls
of the well is filled with cement for a distance of
50 feet below the base of the formation and 50
feet above the top of the formation. When such
conditions exist, a bridge plug capped with 10 feet
of cement set at the top of the producing forma-
tion may be used.
(g) When specified by the Osage UIC office,
any uncased hole below the shoe of any casing to
be left in the well shall be filled with cement to
a depth of at least 50 feet below the casing shoe,
or the bottom of the hole, and the casing above
the shoe shall be filled with cement to at least 50
feet above the shoe of the casing. If the well has
a screen or liner which is not to be removed, the
well bore shall be filled with cement from the
base of the screen or liner to at least 50 feet above
the top of the screen or liner.
(h) All intervals between cement plugs in the
well bore shall be filled with mud.
(i) A report containing copies of the cementing
tickets shall be submitted to BIA within 10 days
of plugging completion.
(j) A surety bond must be on file with the Bu-
reau of Indian Affairs (BIA), and shall not be re-
leased until the well has been properly plugged
and the Regional Administrator has agreed to the
release of the bond.
§ 147.2906 Emergency permits.
(a) An emergency permit may be issued if:
(1) There will be an imminent health hazard un-
less an emergency permit is issued; or
(2) There will be a substantial and irretrievable
loss of oil and gas resources, timely application
for a permit could not practicably have been made,
and injection will not result in movement of fluid
into an USDW; or
(3) There will be a substantial delay in oil or
gas production, and injection will not result in
movement of fluid into an USDW.
(b) Requirements—(1) Permit duration, (i)
Emergency permits issued to avoid an imminent
health threat may last no longer than the time nec-
essary to prevent the hazard.
(ii) Emergency permits issued to prevent a sub-
stantial and irretrievable loss of oil or gas re-
sources shall be for no longer than 90 days, unless
a complete permit application has been submitted
during that time; in which case the emergency per-
mit may be extended until a final decision on the
permit application has been made.
(iii) Emergency permits to avoid a substantial
delay in oil or gas production shall be issued only
after a complete permit application has been sub-
mitted and shall be effective until a final decision
on the permit application is made.
(2) Notice of the emergency permit will be
given by the Regional Administrator according to
64
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§147.2912
the notice procedure for a draft permit within 10
days after issuance.
(3) An emergency permit may be oral or writ-
ten. If oral, a written emergency permit must be
issued within five calendar days.
Confidentiality of informa-
§147.2907
tion.
(a) The following information cannot be
claimed confidential by the submitter:
(1) Name and address of permit applicant or
permittee.
(2) Information concerning the existence, ab-
sence or level of contaminants in drinking water.
(b) Other information claimed as confidential
will be processed in accordance with 40 CFR
part 2.
§147.2908 Aquifer exemptions.
(a) After notice and opportunity for a public
hearing, the Administrator may designate any aq-
uifer or part of an aquifer as an exempted aquifer.
(b) An aquifer or its portion that meets the defi-
nition of a USDW may be exempted by EPA from
USDW status if the following conditions are met:
(1) It does not currently serve as a source of
drinking water, and
(2) It cannot now and will not in the future
serve as a source of drinking water because:
(i) It is hydrocarbon producing, or can be dem-
onstrated by a permit applicant as a part of a per-
mit application for a Class II operation to contain
hydrocarbons that are expected to be commercially
producible (based on historical production or geo-
logic information); or
(ii) It is situated at a depth or location which
makes recovery of water for drinking water pur-
poses economically or technologically impractical;
or
(iii) It is so contaminated that it would be eco-
nomically or technologically impractical to render
that water fit for human consumption; or
(3) The Total Dissolved Solids content of the
groundwater is more than 3,000 and less than
10,000 mg/1 and it is not reasonably expected to
supply a public water system.
§147.2909 Authorization of existing
wells by rule.
All existing Class II injection wells (wells au-
thorized by BIA and constructed or completed on
or before the effective date of the Osage UIC pro-
gram) are hereby authorized. Owners or operators
of wells authorized by rule must comply with the
provisions of §§147.2903, 147.2905, 147.2907,
and 147.2910 through 147.2915.
§147.2910 Duration of authorization
by rule.
Existing Class II injuction wells are authorized
for the life of the well, subject to the obligation
to obtain a permit if specifically required by the
Regional Administrator pursuant to § 147.2915.
§147.2911 Construction requirements
for wells authorized by rule.
All Class II wells shall be cased and cemented
to prevent movement of fluids into USDWs. The
Regional Administrator shall review inventory in-
formation, data submitted in permit applications,
and other records, to determine the adequacy of
construction (completion) or existing injection
wells. At the Regional Administrator's discretion,
well casing and cementing may be considered ade-
quate if it meets the BIA requirements that were
in effect at the time of construction (completion)
and will not result in movement of fluid into an
USDW. If the Regional Administrator determines
that the construction of a well authorized by rule
is inadequate, he shall require a permit, or he shall
notify the owner/operator and the owner/operator
shall correct the problem according to instructions
from the Regional Administrator. All corrections
must be completed within one year of owner/oper-
ator notification of inadequacies.
§147.2912 Operating requirements for
wells authorized by rule.
(a) Each well authorized by rule must have me-
chanical integrity. Mechanical integrity must be
demonstrated within five years of program adop-
tion. The Regional Administrator will notify the
well owner/operator three months before proof of
mechanical integrity must be submitted to EPA.
The owner/operator must contact the Osage UIC
office at least five days prior to testing. The
owner/operator may perform the mechanical integ-
rity test prior to receiving notice from the Re-
gional Administrator, provided the Osage UIC of-
fice is notified at least five days in advance. Con-
ditions of both paragraphs (a)(l) and (a)(2) of this
section must be met.
(1) There is no significant leak in the casing,
tubing or packer. This may be shown by the fol-
lowing:
(i) Performance of a pressure test of the casing/
tubing annulus to at least 200 psi, or the pressure
specified by the Regional Administrator, to be re-
peated thereafter, at five year intervals, for the life
of the well (pressure tests conducted during well
operation shall maintain an injection/annulus pres-
sure differential of at least 100 psi through the
tubing length); or
(ii) Maintaining a positive gauge pressure on the
casing/tubing annulus (filled with liquid) and mon-
65
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§147.2913
itoring the pressure monthly and reporting of the
pressure information annually; or
(iii) Radioactive tracer survey; or
(iv) For enhanced recovery wells, records of
monitoring showing the absence of significant
changes in the relationship between injection pres-
sure and injection flow rate at the well head, fol-
lowing an initial pressure test as described by
paragraph (a)(l)(i) or (v) of this section; or
(v) Testing or monitoring programs approved by
the Regional Administrator on a case-by-case
basis, and
(2) There is no significant fluid movement into
a USDW through vertical channels adjacent to the
well bore. This may be shown by any of the fol-
lowing:
(i) Cementing records (need not be reviewed
every five years);
(ii) Tracer survey (in appropriate hydrogeologic
settings; must be used in conjunction with at least
one of the other alternatives);
(iii) Temperature log;
(iv) Noise log; or
(v) Other tests deemed acceptable by the Re-
gional Administrator.
(b) Injection pressure at the wellhead shall be
limited so that it does not initiate new fractures or
propagate existing fractures in the confining zone
adjacent to any UDSW.
(1) For existing Class II salt water disposal
wells, The owner/operator shall, except during
well stimulation, use an injection pressure at the
wellhead no greater than the pressure calculated
by using the following formula:
Pm=(0.75 • 0.433Sg)d
where:
Pm=injection pressure at the wellhead in pounds per
square inch
Sg=specific gravity of injected fluid (unitless)
d=injection depth in feet.
Owner/operator of wells shall comply with the
above injection pressure limits no later than one
year after the effective date of this regulation.
(2) For existing Class II enhanced recovery
wells, the owner or operator:
(i) Shall use an injection pressure no greater
than the pressure established by the Regional Ad-
ministrator for the field or formation in which the
well is located. The Regional Administrator shall
establish such a maximum pressure after notice,
opportunity for comment, and opportunity for a
public hearing according to the provisions of part
124, subpart A of this chapter, and will inform
owners and operators in writing of the applicable
maximum pressure.
(ii) Prior to such time as the Regional Adminis-
trator establishes rules for maximum injection
pressures based on data provided pursuant to para-
graph (b)(2)(ii)(B) of this section the owner/opera-
tor shall:
(A) Limit injection pressure at the wellhead to
a value which will not initiate new fractures or
propagate existing fractures in the confining zone
adjacent to any USDW; and
(B) Submit data acceptable to the Regional Ad-
ministrator which defines the fracture pressure of
the formation in which injection is taking place. A
single test may be submitted on behalf of two or
more operators conducting operations in the same
formation, if the Regional Administrator approves
such submission. The data shall be submitted to
the Regional Administrator within one year of the
effective date of this program.
(c) Injection wells or projects which have exhib-
ited failure to confine injected fluids to the author-
ized injection zone or zones may be subject to re-
striction of injection volume and pressure, or shut-
down, until the failure has been identified and cor-
rected.
(The information collection requirements contained in
paragraphs (a)(l) (ii) through (v) and (a)(2) (i) through
(v) were approved by the Office of Management and
Budget under control number 2040-0042)
§147.2913 Monitoring and reporting
requirements for wells authorized
by rule.
(a) The owner/operator has the duty to submit
inventory information to the Regional Adminis-
trator upon request. Such request may be a general
request to all operators in the County (e.g., public
notice, or mailout requesting verification of infor-
mation).
(b) The operator shall monitor the injection
pressure (psi) and rate (bbl/day) at least monthly,
with the results reported annually. The annual re-
port shall specify the types of methods used to
generate the monitoring data.
(c) The owner/operator shall notify the Osage
UIC office within 30 days of any mechanical fail-
ure or down-hole problems involving well integ-
rity, well workovers, or any noncompliance. As re-
quired, operators must apply for and obtain a
workover permit from the Bureau of Indian Af-
fairs Osage Agency before reentering an injection
well. If the condition may endanger an USDW,
the owner/operator shall notify the Osage UIC of-
fice orally within 24 hours, with written notice in-
cluding plans for testing and/or repair to be sub-
mitted within five days. If all the information is
not available within five days, a followup report
must be submitted within 30 days.
(d) The owner/operator shall determine the na-
ture of injected fluids initially, when the nature of
injected fluids is changed or when new constitu-
ents are added. The records should reflect the
66
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§147.2918
source of character of the new fluid and the date
changes were made.
(e) The owner/operator shall retain all monitor-
ing records for three years, unless an enforcement
action is pending, and then until three years after
the enforcement action has been resolved.
(Approved by the Office of Management and Budget
under control number 2040-0042)
§147.2914 Corrective action for wells
authorized by rule.
Based on the Regional Administrator's discre-
tion, corrective action to prevent movement of
fluid into an USDW may be required for improp-
erly sealed, completed or abandoned wells (i.e.,
wells or well bores which may provide and avenue
for fluid migration into a USDW) within the zone
of endangering influence (as defined in
§ 147.2904, Area of Review) of an injection well
authorized by rule.
(a) EPA will notify the operator when corrective
action is required. Corrective action may include:
(1) Well modifications:
(i) Recementing;
(ii) Workover;
(iii) Reconditioning;
(iv) Plugging or replugging;
(2) Limitations on injection pressure to prevent
movement of fluid into an USDW;
(3) A more stringent monitoring program; and/
or
(4) Periodic testing of other wells to determine
if significant movement of fluid has occurred.
(b) If the monitoring discussed in paragraph (a)
(3) or (4) of this section indicate the potential
endangerment of an USDW, then action as de-
scribed in paragraph (a) (1) or (2) of this section
must be taken.
§ 147.2915 Requiring a permit
authorized bv rule.
for wells
(a) The Regional Administrator may require the
owner or operator of any well authorized by rule
to apply for an individual or area permit. The Re-
gional Administrator shall notify the owner/opera-
tor in writing that a permit application is required.
The notice shall contain:
(1) Explanation of need for application;
(2) Application form and, if appropriate, a list
of additional information to be submitted; and
(3) Deadline for application submission.
(b) Cases in which the Regional Administrator
may require a permit include:
(1) The owner or operator is not in compliance
with provisions of the rule;
(2) Injection well is no longer within the cat-
egory of wells authorized by rule;
(3) Protection of USDWs requires that the injec-
tion operation be regulated by requirements which
are not contained in the rule; or
(4) Discretion of Regional Administrator.
(c) Injection is no longer authorized by rule
upon the effective date of a permit or permit de-
nial, or upon failure of the owner/operator to sub-
mit an application in a timely manner as specified
in the notice described in paragraph (a) of this
section.
(d) Any owner/operator authorized by rule may
request to be excluded from the coverage of the
rules by applying for an individual or area UIC
permit.
§147.2916 Coverage of permitting re-
quirements.
The owner or operator of a new Class II injec-
tion well or any other Class II well required to
have a permit in the Osage Mineral Reserve shall
comply with the requirements of §§ 147.2903,
147.2907, 147.2918, through 147.2928.
§ 147.2917 Duration of permits.
Unless otherwise specified in the permit, the
permits will be in effect until the well is plugged
and abandoned or the permit terminated. The Re-
gional Administrator will review each issued per-
mit at least once every five years to determine
whether it should be modified or terminated.
§147.2918
tion.
Permit application informa-
(a) The owner/operator must submit the original
and three copies of the permit application, with
two complete sets of attachments, to the Osage
UIC office. The application should be signed by
the owner/operator or a duly authorized represent-
ative. The application should also include appro-
priate forms (i.e., BIA's Application for Operation
or Report on Wells and EPA's permit application).
The applicant has the burden of proof to show that
the proposed injection activities will not endanger
USDWs.
(b) The application shall include the information
listed below. Information required by paragraphs
(b) (5), (7), or (9) of this section that is contained
in EPA or BIA files may be included in the appli-
cation by reference.
(1) Map using township-range sections showing
the area of review and identifying all wells of
public record penetrating the injection interval.
(2) Tabulation of data on the wells identified in
paragraph (b)(l) of this section, including location,
depth, date drilled, and record of plugging and/or
completion.
(3) Operating data:
(i) Maximum and average injection rate;
(ii) Maximum and average injection pressure;
67
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§147.2919
(iii) Whether operation is on cyclic or continu-
ous operation basis; and
(iv) Source and appropriate analysis of injected
fluids, including total dissolved solids, chlorides,
and additives.
(4) Geologic data on the injection and confining
zones, including faults, geological name, thickness
permeability, depth and lithologic description.
(5) Depth to base of fresh water.
(6) Schematic drawings of the surface and sub-
surface details of the well, showing:
(i) Total depth or plug-back depth;
(ii) Depth to top and bottom of injection inter-
val;
(iii) Depths to tops and bottoms of casing and
cemented intervals, and amount of cement to be
used;
(iv) Size of casing and tubing, and depth of
packer; and
(v) Hole diameter.
(7) Proof that surety bond has been filed with
the BIA Superintendent in accordance with 25
CFR 226.6. A surety bond must be maintained
until the well has been properly plugged.
(8) Verification of public notice, consisting of a
list showing the names, addresses, and date that
notice of permit application was given or sent to:
(i) The surface land owner;
(ii) Tenants on land where injection well is lo-
cated or proposed to be located; and
(iii) Each operator of a producing lease within
one-half mile of the well location.
(9) All available logging and testing data on the
well (for existing wells, i.e., wells to be converted
or wells previously authorized by rule).
(Approved by the Office of Management and Budget
under control number 2040-0042)
§147.2919 Construction requirements
for wells authorized by permit.
(a) All Class II wells shall be sited so that they
inject into a formation that is separated from any
USDW by a confining zone free of known open
faults or fractures within the area of review.
(b) All Class II wells shall be cased and ce-
mented to prevent movement of fluids into or be-
tween USDWs. Requirements shall be based on
the depth to base of fresh water, and the depth to
the injection zone. Newly drilled Class II wells
must have surface casing set and cemented to at
least 50 feet below the base of fresh water, or the
equivalent (e.g., long string cemented to surface).
At the Regional Administrator's discretion, the
casing and cementing of wells to be converted
may be considered adequate if they meet the BIA
requirements that were in effect at the time of
construction (completion), and will not result in
movement of fluid into a USDW.
(c) Owner/operators shall provide a standard fe-
male fitting with cut-off valves, connected to the
tubing and the tubing/casing annulus so that the
injection pressure and annulus pressure may be
measured by an EPA representative by attaching a
gauge having a standard male fitting.
(d) No owner or operator may begin construc-
tion of a new well until a permit authorizing such
construction has been issued, unless such construc-
tion is otherwise authorized by an area permit.
§147.2920 Operating requirements for
wells authorized by permit.
(a) For new Class II wells, injection shall be
through adequate tubing and packer. Packer shall
be run on the tubing and set inside the casing
within 75 feet of the top of the injection interval.
For existing Class II, wells, injection shall be
through adequate tubing and packer, or according
to alternative operating requirements approved by
the Regional Administrator, as necessary to pre-
vent the movement of fluid into a USDW.
(b) Each well must have mechanical integrity.
Mechanical integrity of the injection well must be
shown prior to operation. The owner/operator must
notify the Osage UIC office at least five days
prior to mechanical integrity testing. Conditions of
both paragraphs (b) (1) and (2) of this section
must be met.
(1) There is no significant leak in the casing,
tubing or packer. This may be shown by the fol-
lowing:
(i) Performance of a pressure test of the casing/
tubing annulus to at least 200 psi, or the pressure
specified by the Regional Administrator, to be re-
peated thereafter, at five year intervals, for the life
of the well (Pressure tests conducted during well
operation shall maintain an injection/annulus pres-
sure differential of at least 100 psi throughout the
tubing length); or
(ii) Maintaining a positive gauge pressure on the
casing/tubing annulus (filled with liquid) and mon-
itoring the pressure monthly and reporting of the
pressure information annually; or
(iii) Radioactive tracer survey; or
(iv) For enhanced recovery wells, record of
monitoring showing the absence of significant
changes in the relationship between injection pres-
sure and injection flow rate at the wellhead, fol-
lowing an initial pressure test as described by
paragraph (b)(l) (i) or (v) of this section; or
(v) Testing or monitoring programs approved by
the Administrator on a case-by-case basis, and
(2) There is no significant fluid movement into
a USDW through vertical channels adjacent to the
well bore. This may be shown by any of the fol-
lowing:
(i) Cementing records (need not be reviewed
every five years);
68
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§147.2923
(ii) Tracer survey (in appropriate hydrogelogic
settings; must be used in conjunction with at least
one of the other alternatives);
(iii) Temperature log;
(iv) Noise log; or
(v) Other tests deemed acceptable by the Ad-
ministrator.
(c) Injection pressure at the wellhead shall be
limited so that it does not initiate new fractures or
propagate existing fractures in the confining zone
adjacent to any UDSW.
(d) Injection wells or projects which have ex-
hibited failure to confine injected fluids to the au-
thorized injection zone or zones may be subject to
restriction of injected volume and pressure or shut-
in, until the failure has been identified and cor-
rected.
(e) Operation shall not commence until proof
has been submitted to the Regional Administrator,
or an EPA representative has witnessed that any
corrective action specified in the permit has been
completed.
§ 147.2921 Schedule of compliance.
The permit may, when appropriate, specify a
schedule of compliance leading to compliance
with the Safe Drinking Water Act and the Osage
UIC regulations.
(a) Any schedule of compliance shall require
compliance as soon as possible, and in no case
later than three years after the effective date of the
permit.
(b) If a permit establishes a schedule of compli-
ance which exceeds one year from the date of per-
mit issuance, the schedule shall set forth interim
requirements and the dates for their achievement.
(1) The time between interim dates shall not ex-
ceed one year.
(2) If the time necessary for completion of any
interim requirement is more than 1 year and is not
readily divisible into stages for completion, the
permit shall specify interim dates for the submis-
sion of reports of progress toward completion of
the interim requirements and indicate a projected
completion date.
(c) The permit shall be written to require that
if a schedule of compliance is applicable, progress
reports be submitted no later than 30 days follow-
ing each interim date and the final date of compli-
ance.
§147.2922 Monitoring and reporting
requirements for wells authorized
by permit.
(a) The owner/operator shall notify the Osage
UIC office within 30 days of the date on which
injection commenced.
(b) The operator shall monitor the injection
pressure (psi) and rate (bbl/day) at least monthly,
with the results reported annually. The annual re-
ports shall specify the types or methods used to
generate the monitoring data.
(c) The owner/operator shall notify the Osage
UIC office within 30 days of any mechanical fail-
ure or down-hole problems involving well integ-
rity, well workovers, or any noncompliance. (Op-
erators should note the obligation to apply for and
obtain a workover permit from the Bureau of In-
dian Affairs Osage Agency before reentering an
injection well.) If the condition may endanger an
USDW, the owner/operator shall notify the Osage
UIC officer orally within 24 hours, with written
notice including plans for testing and/or repair to
be submitted within five days. If all the informa-
tion is not available within five days, a followup
report must be submitted within 30 days.
(d) The owner/operator shall retain all monitor-
ing records for three years, unless an enforcement
action is pending, and then until three years after
the enforcement action has been resolved.
(e) The owner/operator shall notify the Osage
UIC office in writing of a transfer of ownership
at least 10 days prior to such transfer.
(Approved by the Office of Management and Budget
under control number 2040-0042)
§147.2923 Corrective action for wells
authorized by permit.
All improperly sealed, completed or abandoned
wells (i.e., wells or well bores which may provide
an avenue for movement of fluid into an UDSW)
within the zone of endangering influence (as de-
fined in § 147.2904, Area of Review) that pene-
trate the injection zone of a Class II well, must
have corrective action taken to prevent movement
of fluid into a USDW.
(a) EPA will review completion and plugging
records of wells within the zone of endangering
influence that penetrate the injection zone and will
notify the operator when corrective action is re-
quired. Corrective action may include:
(1) Well modifications, including:
(i) Recementing;
(ii) Workover;
(iii) Reconditioning; and/or
(iv) Plugging or replugging;
(2) Permit conditions to limit injection pressure
so as to prevent movement of fluid into a USDW;
(3) A more stringent monitoring program; and/
or
(4) Periodic testing of other wells within the
area of review to determine if significant move-
ment of fluid has occurred. If the monitoring dis-
cussed in paragraph (a)(3) or (a)(4) of this section
indicates the potential endangerment of a USDW,
then action as described in paragraph (a)(l) or
(a)(2) of this section must be taken.
69
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§147.2924
(b) If the Regional Administrator has demon-
strable knowledge that wells within the zone of
endangering influence will not serve as conduits
for fluid movement into a USDW, the permit may
be approved without requiring corrective action.
However, additional monitoring shall be required
to confirm that no significant migration will occur.
§147.2924 Area permits.
(a) Area permits may be issued for more than
one injection well if the following conditions are
met:
(1) All existing wells are described and located
in the permit application;
(2) All wells are within the same well field,
project, reservoir or similar unit;
(3) All wells are of similar construction; and
(4) All wells are operated by the same owner/
operator.
(b) Area permits shall specify:
(1) The area within which injection is author-
ized; and
(2) The requirements for construction, monitor-
ing, reporting, operation and abandonment for all
wells authorized by the permit.
(c) Area permits can authorize the construction
and operation of new wells within the permit area,
if:
(1) The permittee notifies the Regional Admin-
istrator in the annual report of when and where
any new wells have or will be drilled;
(2) The new wells meet the criteria outlined in
paragraphs (a) and (b) of this section; and
(3) The effects of the new wells were addressed
in the permit application and approved by the Re-
gional Administrator.
§ 147.2925 Standard permit conditions.
(a) The permittee must comply with all permit
conditions, except as authorized by an emergency
permit (described in § 147.2906). Noncompliance
is grounds for permit modification, permit termi-
nation or enforcement action.
(b) The permittee has a duty to halt or reduce
activity in order to maintain compliance with per-
mit conditions.
(c) The permittee shall take all reasonable steps
to mitigate any adverse environmental impact re-
sulting from noncompliance.
(d) The permittee shall properly operate and
maintain all facilities installed or used to meet per-
mit conditions. Proper operation and maintenance
also includes adequate operator staffing and train-
ing, adequate funding, and adequate engineering
capability available.
(e) This permit may be modified or terminated
for cause (see §§ 147.2927 and 147.2928). The fil-
ing of a request by the permittee for a permit
modification or termination, or a notification of
planned changes or anticipated noncompliance,
does not stay any permit condition.
(f) This permit does not convey any property
rights, or any exclusive privilege.
(g) The permittee shall furnish, within a reason-
able time, information that the Regional Adminis-
trator requests, for determination of permit compli-
ance, or if cause exists, for permit modification or
termination.
(h) The permittee shall allow EPA representa-
tives, upon presentation of appropriate credentials
or other documentation, to:
(1) Enter permittee's premises where a regulated
activity is conducted or located, or where records
required by this permit are kept;
(2) Have access to and copy records required by
this permit;
(3) Inspect any facilities, equipment, practices
or operations regulated or required by this permit;
and
(4) Sample or monitor any substances or param-
eters at any location for purpose of assuring com-
pliance with this permit or the SDWA.
(i) Monitoring and records.
(1) Samples and monitoring data shall be rep-
resentative of injection activity.
(2) Permittee shall retain monitoring records for
three years.
(3) Monitoring records shall include:
(i) Date, exact place and time of sampling or
measurement;
(ii) Individual(s) who preformed the measure-
ments;
(iii) Date(s) analyses were performed;
(iv) Individual(s) who performed the analyses;
(v) Analytical techniques or methods used, in-
cluding quality assurance techniques employed to
insure the generation of reliable data; and
(vi) Results of analyses.
(j) Signatory requirements. All applications, re-
ports or information submitted to the Regional Ad-
ministrator or the Osage UIC office must be
signed by the injection facility owner/operator or
his duly authorized representative. The person
signing these documents must make the following
certification:
"I certify under penalty of law that I have personally
examined and am familiar with the information submitted
in this document and all attachments and that, based on
my inquiry of those individuals immediately responsible
for obtaining the information, I believe that the informa-
tion is true, accurate, and complete. I am aware that there
are significant penalties for submitting false information,
including the possibility of fine and imprisonment."
(k) Reporting requirements. (1) The permittee
shall notify the Regional Administrator as soon as
possible of any planned changes to the facility.
70
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§147.2929
(2) The permittee shall give advance notice to
the Regional Administrator of any planned
changes which may result in noncompliance.
(3) This permit is not transferable to any person
except after notice to the Regional Administrator
in accordance with § 147.2926.
(1) A new injection well shall not commence in-
jection until construction is complete and the Re-
gional Administrator has been notified of comple-
tion of construction and has given his approval to
commence injection.
(The information collection requirements contained in
paragraphs (g) and (i) were approved by the Office of
Management and Budget under control number 2040-
0042)
§147.2926 Permit transfers.
(a) Permits may be transferred to another per-
mittee:
(1) If the current permittee notifies the Regional
Administrator at least 10 days before the proposed
transfer date; and
(2) If the notice includes a written agreement
between the existing and new permittees contain-
ing:
(i) A specific date for transfer of permit respon-
sibility, coverage and liability; and
(ii) Assurance that the new permittee has a sur-
ety bond on file with BIA; and
(3) If the Regional Administrator does not re-
spond with a notice to the existing permittee that
the permit will be modified.
(b) If the conditions in paragraph (a) of this sec-
tion are met, the transfer is effective on the date
specified in paragraph (a)(2)(i) of this section.
§147.2927 Permit modification.
(a) Permits may be modified for the following
causes only (with the exceptions listed in para-
graph (b) of this section regarding minor modifica-
tions):
(1) There are substantial changes to the facility
or activity which occurred after permit issuance
that justify revised or additional permit conditions.
(2) The Regional Administrator has received in-
formation (e.g., from monitoring reports, inspec-
tions) which warrants a modified permit.
(3) The regulations or standards on which the
permit was based have changed.
(4) The Regional Administrator has received no-
tice of a proposed permit transfer.
(5) An interested person requests in writing that
a permit be modified, and the Regional Adminis-
trator determines that cause for modification ex-
ists.
(6) Cause exists for termination under
§ 147.2928, but the Regional Administrator deter-
mines that permit modification is appropriate.
(b) Minor modifications. (1) Minor modifica-
tions do not require that the procedures listed in
paragraph (c) of this section be followed.
(2) Minor modifications consist of:
(i) Correcting typographical errors;
(ii) Requiring more frequent monitoring or re-
porting;
(iii) Changing ownership or operational control
(see § 147.2926, Permit Transfers); or
(iv) Changing quantities or types of injected
fluids, provided:
(A) The facility can operate within conditions of
permit;
(B) The facility classification would not change.
(c) Modification procedures. (1) A draft permit
shall be prepared with proposed modifications.
(2) The draft permit shall follow the general
permitting procedures (i.e., public comment pe-
riod, etc.) before a final decision is made.
(3) Only the changed conditions shall be ad-
dressed in the draft permit or public review.
§147.2928 Permit termination.
(a) Permits may be terminated for the following
causes only:
(1) Noncompliance with any permit condition.
(2) Misrepresentation or failure to fully disclose
any relevant facts.
(3) Determination that the permitted activity en-
dangers human health or the environment.
(4) Interested person requests in writing that a
permit be terminated and the Regional Adminis-
trator determines that request is valid.
(b) Termination procedures. (1) The Regional
Administrator shall issue notice of intent to termi-
nate (which is a type of draft permit).
(2) Notice of intent to terminate shall follow the
general permitting procedures (i.e., public com-
ment period, etc.) before a final decision is made.
§147.2929 Administrative permitting
procedures.
(a) Completeness review. (1) The Regional Ad-
ministrator shall review each permit application
for completeness with the application requirements
in § 147.2918. The review will be completed in 10
days, and the Regional Administrator shall notify
the applicant whether or not the application is
complete.
(2) If the application is incomplete, the Regional
Administrator shall:
(i) List the additional information needed;
(ii) Specify a date by which the information
must be submitted; and
(iii) Notify the applicant when the application is
complete.
(3) After an application is determined complete,
the Regional Administrator may request additional
information to clarify previously submitted infor-
71
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§147.2929
mation. The application will still be considered
complete.
(4) If an applicant fails or refuses to correct de-
ficiencies in the application, the permit may be de-
nied and appropriate enforcement actions taken.
(b) Draft permits. (1) After an application is
deemed complete, the Regional Administrator
shall either prepare a draft permit or notice of in-
tent to deny the permit (which is a type of draft
permit). If the Regional Administrator later de-
cides the tentative decision to deny was wrong, he
shall withdraw the notice of intent to deny and
prepare a draft permit.
(2) A draft permit shall contain at least the fol-
lowing information:
(i) The standard permit conditions in
§ 147.2925;
(ii) Any monitoring and reporting requirements;
(iii) The construction and operation require-
ments; and
(iv) Plugging and abandonment requirements.
(c) Statement of basis. (1) The Regional Admin-
istrator shall prepare a statement of basis for every
draft permit.
(2) The statement of basis shall briefly describe
the draft permit conditions and the reasons for
them. In the case of a notice of intent to deny or
terminate, the statement of basis shall give reasons
to support the tentative decision.
(3) The statement of basis shall be sent to the
applicant, and to any other person who requests a
copy.
(d) Public notice. (l)(i) The Regional Adminis-
trator shall give public notice when:
(A) A permit application has been tentatively
denied;
(B) A draft permit has been prepared;
(C) A hearing has been scheduled; or
(D) An appeal has been granted.
(ii) The applicant shall give public notice that
he is submitting a permit application.
(iii) Public notice is not required when a request
for permit modification or termination is denied.
However, written notice will be given to the per-
mittee and the requester.
(iv) Public notices may include more than one
permit or action.
(2)(i) Public notice of a draft permit (including
notice of intent to deny) shall allow at least 15
days for public comment.
(ii) Public notice of a hearing shall be given at
least 30 days before the hearing.
(3)(i) Public notice given by the Regional Ad-
ministrator for the reasons listed in paragraph
(d)(l)(i) of this section shall be mailed to the ap-
plicant, and published in a daily or weekly paper
of general circulation in the affected area.
(ii) Notice of application submission required by
paragraph (d)(l)(ii) of this section shall be given
to the surface landowner, tenants on the land
where an injection well is located or is proposed
to be located, and to each operator of a producing
lease within one-half mile of the well location
prior to submitting the application to the Regional
Administrator.
(4) The notice of application submission in
paragraphs (d)(l)(ii) and (d)(3)(ii) of this section
shall contain:
(i) The applicant's name and address;
(ii) The legal location of the injection well;
(iii) Nature of activity;
(iv) A statement that EPA will be preparing a
draft permit and that there will be an opportunity
for public comment; and
(v) The name and phone number of EPA con-
tact person.
(5) All other notices shall contain:
(i) The name, address, and phone number of the
Osage UIC office and contact person for addi-
tional information and copies of the draft permit;
(ii) Name and address of permit applicant or
permittee;
(iii) Brief description of nature of activity;
(iv) Brief description of comment period and
comment procedures;
(v) Location of the information available for
public review; and
(vi) In the case of a notice for a hearing the no-
tice shall also include:
(A) Date, time, and location of hearing;
(B) Reference to date of previous notices of the
same permit; and
(C) Brief description of the purpose of the hear-
ing, including rules and procedures.
(e) Public comments. (1) During the public
comment period, any person may submit written
comments on the draft permit, and may request a
public hearing. A request for hearing shall be in
writing and state the issues proposed to be raised
in the hearing.
(2) The Regional Administrator shall consider
all comments when making the final decision, and
shall respond to comments after the decision is
made. The response shall:
(i) Specify if any changes were made from the
draft permit to the final permit decision, and why;
(ii) Briefly describe and respond to all signifi-
cant comments on the draft permit made during
the comment period, or hearing, if held; and
(iii) Be made available to the public.
(f) Public hearings. (1) The Regional Adminis-
trator shall hold a public hearing whenever he
finds a significant amount of public interest in a
draft permit, based on the requests submitted, or
at his discretion.
(2) Any person may submit oral or written
statements and data concerning the draft permit.
The public comment period shall be automatically
72
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§147.2929
extended to the close of any public hearing held,
or may be extended by the hearing officer at the
hearing.
(3) A tape recording or written transcript of the
hearing shall be made available to the public.
(g) Reopening of the comment period. (1) If any
of the information submitted during the public
comment period raises substantial new questions
about a permit, the Regional Administrator may:
(i) Prepare a new draft permit;
(ii) Prepare a revised statement of basis; or
(iii) Reopen the comment period.
(2) Comments submitted during a reopened
comment period shall be limited to the substantial
new questions that caused its reopening.
(3) Public notice about any of the above actions
shall be given and shall define the scope of the
new questions raised.
(h) Issuance and effective date of a permit. (1)
After the close of the comment period on a draft
permit, the Regional Administrator shall make a
final permit decision. The Regional Administrator
shall notify the applicant and each person who
commented or requested to receive notice. The no-
tice shall include reference to the procedures for
appealing a permit decision.
(2) A final permit decision shall become effec-
tive 30 days after giving notice of the decision un-
less:
(i) A later date is specified in the notice;
(ii) Review is requested under § 147.2929(j); or
(iii) No comments requested a change in the
draft permit, in which case the permit is effective
immediately upon issuance.
(i) Stays of contested permit conditions. If a re-
quest for review of a final UIC permit
§ 147.2929(j) is granted, the effect of the contested
permit conditions shall be stayed and shall not be
subject to judicial review pending final agency ac-
tion. If the permit involves a new injection well or
project, the applicant shall be without a permit for
the proposed well pending final agency action.
Uncontested provisions which are not severable
from those contested provisions shall be stayed
with the contested provisions.
(j) Appeal of permits. (1) Any person who filed
comments on the draft permit or participated in
the public hearing may petition the Administrator
to review any condition of the permit decision.
Any person who failed to file comments or partici-
pate in the hearing may petition for administrative
review only to the extent of the changes from the
preliminary permit to the final permit decision.
(2) A person may request review of a final per-
mit decision within 30 days after a final permit
decision has been issued. The 30-day period with-
in which a person may request review begins with
the service of notice of the Regional Administra-
tor's final permit decision unless a later date is
specified in that notice.
(3) The petition requesting review shall include:
(i) A demonstration that the petition is eligible
under the requirements of paragraph (j)(l) of this
section; and, when appropriate,
(ii) A showing that the condition in question is
based on:
(A) A finding of fact or conclusion of law that
is clearly erroneous; or
(B) An exercise of discretion or important pol-
icy consideration which the Administrator, in his
discretion, should review.
(4) The Administrator may also decide, on his
initiative, to review any condition of any UIC per-
mit issued under these requirements. The Adminis-
trator must act under this paragraph within 30
days of the date notice was given of the Regional
Administrator's action.
(5) Within a reasonable time following the fil-
ing of the petition for review, the Administrator
shall issue an order either granting or denying the
request. To the extent that review is denied, the
conditions of the final permit decision become
final agency action.
(6) Public notice shall be given by the Regional
Administrator of any grant of a review petition by
the Administrator. Notice shall be sent to the ap-
plicant, the person requesting the review, appro-
priate persons on the Osage County mailing list
and to newspapers of general circulation in the
county. Included in the notice shall be a briefing
schedule for the appeal and a statement that any
interested person may file an amicus brief. Notice
of denial of the review petition will be sent only
to the person(s) requesting the review.
(7) A petition to the Administrator, under para-
graphs (j) (1) and (2) of this section is a pre-
requisite to the seeking of judicial review of the
final agency action. For purposes of judicial re-
view, final agency action occurs when a final UIC
permit is issued or denied by the Regional Admin-
istrator and agency review procedures are ex-
hausted. A final permit decision shall be issued by
the Regional Administrator:
(i) When the Administrator issues notice to the
parties involved that review has been denied;
(ii) When the Administrator issues a decision on
the merits of the appeal and the decision does not
include a remand of the proceedings; or
(iii) Upon the completion of the remand pro-
ceedings if the proceedings are remanded, unless
the Administrator's remand order specifically pro-
vides that the appeal of the remand decision will
be required to exhaust the administrative remedies.
73
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§147.3000
Subpart HHH—Lands of the Nav-
ajo, Ute Mountain Ute, and All
Other New Mexico Tribes
SOURCE: 53 FR 43104, Oct. 25, 1988, unless otherwise
noted.
§147.3000 EPA-administered program.
(a) Contents. The UIC program for the Indian
lands of the Navajo, the Ute Mountain Ute (Class
II wells only on Ute Mountain Ute lands in Colo-
rado and all wells on Ute Mountain Ute lands in
Utah and New Mexico), and all wells on other In-
dian lands in New Mexico is administered by
EPA. (The term "Indian lands" is defined at 40
CFR 144.3.) The Navajo Indian lands are in the
States of Arizona, New Mexico, and Utah; and the
Ute Mountain Ute lands are in Colorado, New
Mexico and Utah. This program consists of the
UIC program requirements of 40 CFR parts 124,
144, 146, 148, and additional requirements set
forth in the remainder of this subpart. The addi-
tions and modifications of this subpart apply only
to the Indian lands described above. Injection well
owners and operators, and EPA shall comply with
these requirements.
(b) Effective date. The effective date for the
UIC program on these lands is November 25,
1988.
[53 FR 43104, Oct. 25, 1988, as amended at 56 FR 9422,
Mar. 6, 1991]
§147.3001 Definition.
Area of review. For the purposes of this subpart,
area of review means the area surrounding an in-
jection well or project area described according to
the criteria set forth in § 147.3009 of this subpart.
§147.3002 Public notice of permit ac-
tions.
An applicant shall give public notice of his in-
tention to apply for a permit as follows:
(a) Prior to submitting an application to the Di-
rector, the applicant shall give notice to each land-
owner, tenant, and operator of a producing lease
within one-half mile of the well and to the af-
fected Tribal Government. The notice shall in-
clude:
(1) Name and address of applicant;
(2) A brief description of the planned injection
activities including well location, name and depth
of the injection zone, maximum injection pressure
and volume, and source and description of the
fluid to be injected;
(3) Name, address, and phone number of the
EPA contact person; and
(4) A statement that opportunity to comment
will be announced to the public after EPA pre-
pares a draft permit.
(b) In addition to the requirements of
§ 144.31(e) of this chapter, a permit applicant shall
submit a description of the way the notice was
given and the names and addresses of those to
whom it was given.
(c) Upon written request and supporting docu-
mentation, the Director may waive the requirement
in paragraph (a) of this section to give individual
notice of intent to apply for permits in an area
where it would be impractical. However, notice to
the affected Tribal government shall not be
waived.
(d) The Director shall also provide to the af-
fected Tribal government all notices given to State
governments under § 124.10(c) of this chapter.
§ 147.3003 Aquifer exemptions.
(a) Aquifer exemptions in connection with Class
II wells. In accordance with § 144.7(b) and § 146.4
of this chapter, the portions of authorized injection
zones into which existing Class II wells are cur-
rently injecting which are described in appendix A
are hereby exempted. The exempted aquifers are
defined by a one-quarter mile radius from the ex-
isting injection well. The exemption includes the
intended injection zone only and is solely for the
purpose of Class II injection.
(b) Class III wells. In addition to the require-
ments of § 144.7(c)(l) of this chapter, an applicant
for a uranium mining permit which necessitates an
aquifer exemption shall submit a plugging and
abandonment plan containing an aquifer cleanup
plan, acceptable to the Director, describing the
methods or techniques that will be used to meet
the standards of §147.3011. The cleanup plan
shall include an analysis of pre-injection water
quality for the constituents required by the Direc-
tor. The Director shall consider the cleanup plan
in addition to the other information required for
permit applications under §§144.31(e) and 146.34
of this chapter.
§147.3004 Duration of rule authoriza-
tion for existing Class I and III
wells.
Notwithstanding § 144.21(a)(3)(i)(B) of this
chapter, authorization by rule for existing Class I
and III wells will expire 90 days after the effective
date of this UIC program unless a complete permit
application has been submitted to the Director.
§147.3005 Radioactive waste injection
wells.
Notwithstanding §§144.24 and 146.51(b) of this
chapter, owners and operators of wells used to dis-
pose of radioactive waste (as defined in 10 CFR
74
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§147.3010
part 20, appendix B, table II, but not including
high level and transuranic waste and spent nuclear
fuel covered by 40 CFR part 191) shall comply
with the permitting requirements pertaining to
Class I wells in parts 124, 144 and 146 of this
chapter, as modified and supplemented by this
subpart.
§147.3006 Injection pressure for exist-
ing Class II wells authorized by
rule.
(a) Rule-authorized Class II saltwater disposal
wells. In addition to the requirements of
§ 144.28(f)(3)(ii) of this chapter, the owner or op-
erator shall, except during well stimulation, use an
injection pressure measured at the wellhead that is
not greater than the pressure calculated by using
the following formula: Pm=0.2d
where:
Pm=injection pressure at the wellhead in pounds per
square inch
d=depth in feet to the top of the injection zone.
Owners and operators shall comply with this re-
quirement no later than one year after the effective
date of this program.
(b) Rule-authorized Class II enhanced recovery
and hydrocarbon storage wells. (1) In addition to
the requirements of § 144.28(f)(3)(ii) of this chap-
ter, owners and operators shall use an injection
pressure no greater than the pressure established
by the Director for the field or formation in which
the well is located. The Director shall establish
such maximum pressure after notice (including no-
tice to the affected Tribe), opportunity for com-
ment, and opportunity for public hearing according
to the provisions of part 124, subpart A, of this
chapter, and shall inform owners and operators
and the affected Tribe in writing of the applicable
maximum pressure; or
(2) An owner or operator may inject at a pres-
sure greater than that specified in paragraph (b)(l)
of this section for the field or formation in which
he is operating after demonstrating in writing to
the satisfaction of the Director that such injection
pressure will not violate the requirements of
§ 144.28(f)(3)(ii) of this chapter. The Director may
grant such a request after notice (including notice
to the affected Tribe), opportunity for comment
and opportunity for a public hearing according to
the provisions of part 124, subpart A of this chap-
ter.
(3) Prior to the time that the Director establishes
rules for maximum injection pressure under para-
graph (b)(l) of this section the owner or operator
shall:
(i) Limit injection pressure to a value which
will not exceed the operating requirements of
§ 144.28(f)(3)(ii); and
(ii) Submit data acceptable to the Director
which defines the fracture pressure of the forma-
tion in which injection is taking place. A single
submission may be made on behalf of two or
more operators conducting operations in the same
field and formation, if the Director approves. The
data shall be submitted to the Director within one
year of the effective date of this program.
§ 147.3007 Application for a permit.
(a) Notwithstanding the requirements of
§ 144.31(c)(l) of this chapter, the owner or opera-
tor of an existing Class I or III well shall submit
a complete permit application no later than 90
days after the effective date of the program.
(b) The topographic map (or other map if a
topographic map is unavailable) required by
§144.31(e)(7) of this chapter, shall extend two
miles from Class II wells, and 2V2 miles from
Class I and III wells. These maps will show all the
information listed in paragraph 144.31(e)(7) within
l/2 mile for Class II wells and 2V2 miles for Class
I and III wells.
§147.3008 Criteria for aquifer exemp-
tions.
The aquifer exemption criterion in § 146.4(c) of
this chapter shall not be available for this program.
§ 147.3009 Area of review.
The area of review shall be defined as follows:
(a) Class II wells. The area of review for Class
II permits and area permits shall be defined by a
fixed radius as described in § 146.6(b) (1) and (2)
of this chapter except that the radius shall be one-
half mile.
(b) Class I and III wells. The area of review for
Class I and III wells are well fields which may be
either:
(1) An area defined by a radius two and one-
half miles from the well or well field; or
(2) An area one-quarter mile from the well or
well field where the well field production at the
times exceeds injection to produce a net with-
drawal; or
(3) A suitable distance, not less than one-quarter
mile, proposed by the owner or operator and ap-
proved by the Director based upon a mathematical
calculation such as that found in § 146.6(a)(2) of
this chapter.
§ 147.3010 Mechanical integrity tests.
The monitoring of annulus pressure listed in
§146.8(b)(l) of this chapter will only be accept-
able if preceded by a pressure test, using liquid or
gas that clearly demonstrates that mechanical in-
tegrity exists at the time of the pressure test.
75
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§147.3011
§147.3011 Plugging and abandonment
of Class III wells.
To meet the requirements of § 146.10(d) of this
chapter, owners and operators of Class III uranium
projects underlying or in aquifers containing up to
5,000 mg/1 TDS which have been exempted under
§ 146.4 of this chapter shall:
(a) Include in the required plugging and aban-
donment plan a plan for aquifer clean-up and
monitoring which demonstrates adequate protec-
tion of surrounding USDWs.
(1) The Director shall include in each such per-
mit for a Class III uranium project the concentra-
tions of contaminants to which aquifers must be
cleaned up in order to protect surrounding
USDWs.
(2) The concentrations will be set as close as is
feasible to the original conditions.
(b) When requesting permission to plug a well,
owners and operators shall submit for the Direc-
tor's approval a schedule for the proposed aquifer
cleanup, in addition to the information required by
§ 146.34(c).
(c) Cleanup and monitoring shall be continued
until the owner or operator certifies that no con-
stituent listed in the permit exceeds the concentra-
tions required by the permit, and the Director noti-
fies the permittee in writing that cleanup activity
may be terminated.
§147.3012 Construction
for Class I wells.
requirements
In addition to the cementing requirement of
§146.12(b) of this chapter, owners and operators
of Class I wells shall, through circulation, cement
all casing to the surface.
§147.3013 Information to be consid-
ered for Class I wells.
(a) In addition to the information listed in
§146.14(a) of this chapter, the Director shall con-
sider the following prior to issuing any Class I
permit:
(1) Expected pressure changes, native fluid dis-
placement, and direction of movement of the in-
jected fluid; and
(2) Methods to be used for sampling, and for
measurement and calculation of flow.
(b) In addition to the information listed in
§ 146.14(b) of this chapter, the Director shall con-
sider any information required under §146.14(a)
of this chapter (as supplemented by this subpart)
that has been gathered during construction.
§147.3014 Construction requirements
for Class III wells.
(a) In addition to the requirements of
§ 146.32(c)(3) of this chapter, radiological charac-
teristics of the formation fluids shall be provided
to the Director.
(b) In addition to the requirements of
§ 146.32(e) of this chapter, the Director may re-
quire monitoring wells to be completed into
USDWs below the injection zone if those USDWs
may be affected by mining operations.
§147.3015 Information to be consid-
ered for Class III wells.
(a) In addition to the requirements of
§ 146.34(a) of this chapter, the following informa-
tion shall be considered by the Director:
(1) Proposed construction procedures, including
a cementing and casing program, logging proce-
dures, deviation checks, and a drilling, testing and
coring program.
(2) Depth to the proposed injection zone, and a
chemical, physical and radiological analysis of the
ground water in the proposed injection zone suffi-
cient to define pre-injection water quality as re-
quired for aquifer cleanup by §147.3011 of this
subpart.
(3) An aquifer cleanup plan if required by
§ 147.3003(b) of this subpart.
(4) Any additional information that may be nec-
essary to demonstrate that cleanup will reduce the
level of contaminants in the surrounding USDWs
as close as feasible to the original conditions.
(b) In addition to the requirements of
§ 146.34(b) of this chapter, the Director shall con-
sider any information required under § 146.34(a)
of this chapter (as supplemented by this subpart)
that has been gathered during construction.
§147.3016 Criteria and standards ap-
plicable to Class V wells.
In addition to the criteria and standards applica-
ble to Class V wells set forth in subpart F of part
146 of this chapter, owners and operators of wells
that do not fall within the Class IV category but
that are used to dispose of radioactive wastes (as
defined in 10 CFR part 20, appendix B, table II,
col-
umn 2, but not including high level and trans-
uranic wastes and spent nuclear fuel covered by
40 CFR part 191) shall comply with all of the re-
quirements applicable to Class I injection wells in
40 CFR parts 124, 144 and 146 as supplemented
by this subpart.
APPENDIX A TO SUBPART HHH—EXEMPTED
AQUIFERS IN NEW MEXICO
The areas described by a one-quarter mile ra-
dius around the following Class II wells in the
listed formations are exempted for the purpose of
Class II injection.
76
-------
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§147.3100
Subpart III—Lands of Certain
Oklahoma Indian Tribes
SOURCE: 53 FR 43109, Oct. 25, 1988, unless otherwise
noted.
§147.3100 EPA-administered program.
(a) Contents. The UIC program for the Indian
lands in Oklahoma, except for that covering the
Class II wells of the Five Civilized Tribes, is ad-
ministered by EPA. The UIC program for all wells
on Indian lands in Oklahoma, except Class II
wells on the Osage Mineral Reserve (found at 40
CFR part 147, Subpart GGG) and the Class II pro-
gram for the Five Civilized Tribes, consists of the
UIC program requirements of 40 CFR parts 124,
144, 146, 148, and additional requirements set
forth in the remainder of this subpart. Injection
well owners and operators, and EPA shall comply
with these requirements.
(b) Effective date. The effective date for the
UIC program for all wells on Indian lands except
Class II wells on the Osage Mineral Reserve and
Class II wells on the lands of the Five Civilized
Tribes is November 25, 1988.
[53 FR 43109, Oct. 25, 1988, as amended at 56 FR 9422,
Mar. 6, 1991]
§147.3101 Public notice of permit ac-
tions.
(a) In addition to the notice requirements of
§ 124.10 of this chapter, the Director shall provide
to the affected Tribal government all notices given
to an affected State government under §124.10(c)
of this chapter.
(b) Class I and III wells. In addition to the no-
tice requirements of § 124.10 of this chapter:
(1) Owners and operators of Class I and III
wells shall notify the affected Tribal government
prior to submitting an application for a permit,
shall publish such notice in at least two news-
papers of general circulation in the area of the
proposed well, and shall broadcast notice over at
least one local radio station.
(2) The Director shall publish a notice of avail-
ability of a draft permit in at least two newspapers
of general circulation in the area of the proposed
well, and broadcast notice over at least one local
radio station. The public notice shall allow at least
45 days for public comment.
(c) Class II wells. In addition to the notice re-
quirements of § 124.10 of this chapter:
(1) Owners and operators of Class II wells shall
give notice of application for a permit to the af-
fected Tribal government prior to submitting the
application to the Director.
(2) In addition to the public notice required for
each action listed in §124.10(a) of this chapter,
the Director shall also publish notice in a daily or
weekly newspaper of general circulation in the af-
fected area for actions concerning Class II wells.
§147.3102 Plugging and abandonment
plans.
In lieu of the requirements of § 144.28(c)(l) and
(2) (i)-(iii) of this chapter, owners and operators
of Class II wells shall comply with the plugging
and abandonment provisions of §147.3108 of this
subpart.
§147.3103 Fluid seals.
Notwithstanding §§ 144.28(f)(2) and 146.12(c)
of this chapter, owners and operators shall not use
a fluid seal as an alternative to a packer.
§ 147.3104 Notice of abandonment.
(a) In addition to the notice required by
§ 144.28(j)(2) of this chapter, the owner or opera-
tor shall at the same time submit plugging infor-
mation in conformance with §147.3108 of this
subpart including:
(1) Type and number of plugs;
(2) Elevation of top and bottom of each plug;
(3) Method of plug placement; and
(4) Type, grade and quantity of cement to be
used.
(b) In addition to the permit conditions specified
in §§144.51 and 144.52 of this chapter, each
owner and operator shall submit and each permit
shall contain the following information (in con-
formance with § 146.3108 of this subpart):
(1) Type and number of plugs;
(2) Elevation of top and bottom of each plug;
(3) Method of plug placement; and
(4) Type, grade and quantity of cement to be
used.
§147.3105 Plugging and abandonment
report.
(a) In lieu of the time periods for submitting a
plugging report in § 144.28(k) of this chapter,
owners and operators of Class I and III wells shall
submit the report within 15 days of plugging the
well and owners or operators of Class II wells
within 30 days of plugging, or at the time of the
next required operational report (whichever is
less.) If the required operational report is due less
than 15 days following completion of plugging,
then the plugging report shall be submitted within
30 days for Class II wells and 15 days for Class
I and III wells.
(b) In addition to the requirement of
§ 144.28(k)(l) of this chapter, owners and opera-
tors of Class II wells shall include a statement that
the well was plugged in accordance with § 146.10
of this chapter and § 147.3109 of this subpart, and,
82
-------
§147.3108
if the actual plugging differed, specify the actual
procedures used.
(c) The schedule upon which reports of plug-
ging must be submitted are changed from those in
§144.51(o) to those specified in paragraph (a) of
this section.
§ 147.3106 Area of review.
(a) When determining the area of review under
§ 146.6(b) of this chapter, the fixed radius shall be
no less than one mile for Class I wells and one-
half mile for Class II and III wells. In the case of
an application for an area permit, determination of
the area of review under § 146.6(b) shall be a
fixed width of not less than one mile for the cir-
cumscribing area of Class I projects and one-half
mile for the circumscribing area of Class II and III
projects.
(b) However, in lieu of § 146.6(c) of this chap-
ter, if the area of review is determined by a math-
ematical model pursuant to paragraph § 146.6(a) of
this chapter, the permissible radius is the result of
such calculation even if it is less than one mile for
Class I wells and one-half for Class II and III
wells.
§147.3107 Mechanical integrity.
(a) Monitoring of annulus pressure conducted
pursuant to § 146.8(b)(l) shall be preceded by an
initial pressure test. A positive gauge pressure on
the casing/tubing annulus (filled with liquid) shall
be maintained continuously. The pressure shall be
monitored monthly.
(b) Pressure tests conducted pursuant to
§146.8(b)(2) of this chapter shall be performed
with a pressure on the casing/tubing annulus of at
least 200 p.s.i. unless otherwise specified by the
Director. In addition, pressure tests conducted dur-
ing well operation shall maintain an injection/an-
nulus pressure differential of at least 100 p.s.i.
throughout the tubing length.
(c) Monitoring of enhanced recovery wells con-
ducted pursuant to § 146.8(b)(3), must be preceded
by an initial pressure test that was conducted no
more than 90 days prior to the commencement of
monitoring.
§147.3108 Plugging Class I, II, and III
wells.
In addition to the requirements of §146.10 of
this chapter, owners and operators shall comply
with the following when plugging a well:
(a) For Class I and III wells:
(1) The well shall be filled with mud from the
bottom of the well to a point one hundred (100)
feet below the top of the highest disposal or injec-
tion zone and then with a cement plug from there
to at least one hundred (100) feet above the top
of the disposal or injection zone.
(2) A cement plug shall also be set from a point
at least fifty (50) feet below the shoe of the sur-
face casing to a point at least five (5) feet above
the top of the lowest USDW.
(3) A final cement plug shall extend from a
point at least thirty feet below the ground surface
to a point five (5) feet below the ground surface.
(4) All intervals between plugs shall be filled
with mud.
(5) The top plug shall clearly show by perma-
nent markings inscribed in the cement or on a
steel plate embedded in the cement the well permit
number and date of plugging.
(b) For Class II wells:
(1) The well shall be kept full of mud as casing
is removed. No surface casing shall be removed
without written approval from the Director.
(2) If surface casing is adequately set and ce-
mented through all USDWs (set to at least 50 feet
below the base of the USDW), a plug shall be set
at least 50 feet below the shoe of the casing and
extending at least 50 feet above the shoe of the
casing; or
(3) If the surface casing and cementing is inad-
equate, the well bore shall be filled with cement
from a point at least 50 feet below the base of the
USDW to a point at least 50 feet above the shoe
of the surface casing, and any additional plugs as
required by the Director.
(4) In all cases, the top 20 feet of the well bore
below 3 feet of ground surface shall be filled with
cement. Surface casing shall be cut off 3 feet
below ground surface and covered with a secure
steel cap on top of the surface pipe. The remaining
3 feet shall be filled with dirt.
(5) Except as provided in sub-paragraph (b)(6)
of this section, each producing or receiving forma-
tion shall be sealed off with at least a 50-foot ce-
ment plug placed at the base of the formation and
at least a 50-foot cement plug placed at the top of
the formation.
(6) The requirement in sub-paragraph (b)(5) of
this section does not apply if the producing/receiv-
ing formation is already sealed off from the well
bore with adequate casing and cementing behind
casing, and casing is not to be removed, or the
only openings from the producing/receiving forma-
tion into the well bore are perforations in the cas-
ing, and the annulus between the casing and the
outer walls of the well is filled with cement for a
distance of 50 feet above the top of the formation.
When such conditions exist, a bridge plug capped
with at least 10 feet of cement set at the top of
the producing formation may be used.
(7) When specified by the Director, any uncased
hole below the shoe of any casing to be left in the
well shall be filled with cement to a depth of at
least 50 feet below the casing shoe, or the bottom
of the hole, and the casing above the shoe shall
83
-------
§147.3109
be filled with cement to at least 50 feet above the § 147.3109 Timing of mechanical integ-
shoe of the casing. If the well has a screen or liner rity test.
which is not to be removed, the well bore shall be ™ , ... ,. , . , . ,
_,,,., „ , , „ , ihe demonstrations ot mechanical integrity re-
tilled with cement trom the base ot the screen or . , , „,,,,.,,,,„, ,- ^, • , . • .
,. , ,_ ,, , , ,, , quired by § 146. 14(b)(2) ot this chapter prior to
hner to at least 50 feet above the top of the screen ^ ,f , v . „ „, FT ,, , ,,
approval tor the operation ot a Class 1 well shall,
intervals between cement plugs in the for an existing wel1' be conducted no more tha°
well bore must be filled with mud. 90 days Prlor to application for the permit and the
(c) For the purposes of this section mud shall results mduded m the Permlt application. The
be defined as: mud of not less than thirty-six (36) owner or operator shall notify the Director at least
viscosity (API Full Funnel Method) and a weight seven daYs m advance of the time and date of the
of not less than nine (9) pounds per gallon. test so that EPA observers may be present.
84
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PART 148— HAZARDOUS WASTE
INJECTION RESTRICTIONS
Subpart A— General
Sec.
148.1 Purpose, scope and applicability.
148.2 Definitions.
148.3 Dilution prohibited as a substitute for treatment.
148.4 Procedures for case-by-case extensions to an ef-
fective date.
148.5 Waste analysis.
Subpart B— Prohibitions on Injection
specific prohibitions — solvent wastes.
specific prohibitions — dioxin-containing
specific prohibitions — California list
specific prohibitions — first third wastes.
specific prohibitions — second third
specific prohibitions — third third wastes.
specific prohibitions; newly listed wastes.
specific prohibitions-newly identified
148.10 Waste
148.11 Waste
wastes.
148.12 Waste
wastes.
148.14 Waste
148.15 Waste
wastes.
148.16 Waste
148.17 Waste
148.18 Waste
wastes.
Subpart C— Petition Standards and
Procedures
148.20 Petitions to allow injection of a waste prohibited
under subpart B.
148.21 Information to be submitted in support of peti-
tions.
148.22 Requirements for petition submission, review
and approval or denial.
148.23 Review of exemptions granted pursuant to a pe-
tition.
148.24 Termination of approved petition.
AUTHORITY: Sees. 3004, Resource Conservation and
Recovery Act, 42 U.S.C. 6901 et seq.
SOURCE: 53 FR 28154, July 26, 1988, unless otherwise
noted.
Subpart A — General
§148.1 Purpose, scope and applicabil-
ity.
(a) This part identifies hazardous wastes that are
restricted from disposal into Class I hazarous
waste injection wells and defines those cir-
cumstances under which a waste, otherwise pro-
hibited from injection, may be injected.
(b) The requirements of this part apply to own-
ers or operators of Class I hazardous waste injec-
tion wells used to inject hazardous waste.
(c) Wastes otherwise prohibited from injection
may continue to be injected:
(1) If an extension from the effective date of a
prohibition has been granted pursuant to §148.4
with respect to such wastes; or
(2) If an exemption from a prohibition has been
granted in response to a petition filed under
§148.20 to allow injection of restricted wastes
with respect to those wastes and wells covered by
the exemption; or
(3) If the waste is generated by a conditionally
exempt small quantity generator, as defined in
§261.5; or
(d) Wastes that are hazardous only because they
exhibit a hazardous characteristic, and which are
otherwise prohibited under this part, or part 268 of
this chapter, are not prohibited if the wastes:
(1) Are disposed into a nonhazardous or hazard-
ous injection well as defined under 40 CFR
§ 146.6(a); and
(2) Do not exhibit any prohibited characteristic
of hazardous waste identified in 40 CFR part 261,
subpart C at the point of injection.
[53 FR 28154, July 26, 1988, as amended at 55 FR
22683, June 1, 1990; 57 FR 8088, Mar. 6, 1992; 57 FR
31763, July 20, 1992; 60 FR 33932, June 29, 1995; 61
FR 15596, Apr. 8, 1996; 61 FR 33682, June 28, 1996]
EFFECTIVE DATE NOTE: At 61 FR 15596, Apr. 8, 1996,
§ 148.1 was amended by revising paragraph (a), effective
Apr. 8, 1998. For the convenience of the user, the revised
text is set forth as follow:
§148.1 Purpose, scope and applicability.
(a) This part identifies wastes that are restricted from
disposal into Class I wells and defines those cir-
cumstances under which a waste, otherwise prohibited
from injection, may be injected.
§148.2 Definitions.
Injection interval means that part of the injec-
tion zone in which the well is screened, or in
which the waste is otherwise directly emplaced.
Transmissive fault or fracture is a fault or frac-
ture that has sufficient permeability and vertical
extent to allow fluids to move between formations.
§148.3 Dilution prohibited as a sub-
stitute for treatment.
The prohibition of §268.3 shall apply to owners
or operators of Class I hazardous waste injection
wells.
§148.4 Procedures for case-by-case ex-
tensions to an effective date.
The owner or operator of a Class I hazardous
waste injection well may submit an application to
the Administrator for an extension of the effective
date of any applicable prohibition established
under subpart B of this part according to the pro-
cedures of §268.5.
-------
§148.5
§148.5 Waste analysis.
Generators of hazardous wastes that are dis-
posed of into Class I injection wells must comply
with the applicable requirements of §268.7 (a) and
(b). Owners or operators of Class I hazardous
waste injection wells must comply with the appli-
cable requirements of §268.7(c).
Subpart B—Prohibitions on
Injection
§148.10 Waste specific prohibitions-
solvent wastes.
(a) Effective August 8, 1988, the spent solvent
wastes specified in §261.31 as EPA Hazardous
Waste Nos. F001, F002, F003, F004, and F005 are
prohibited from underground injection unless the
solvent waste is a solvent-water mixture or sol-
vent-containing sludge containing less than 1 per-
cent total F001-F005 solvent constituents listed in
Table A of this section.
(b) Effective August 8, 1990, all spent F001-
F005 solvent wastes containing less than 1 percent
total F001-F005 solvent constituents listed in
Table A of this section are prohibited from injec-
tion.
(c) Effective August 8, 1990, all spent F002 and
F005 wastes containing solvent constituents listed
in Table B of this section are prohibited from un-
derground injection at off-site injection facilities.
(d) Effective November 8, 1990, the wastes
specified in paragraph (c) of this section are pro-
hibited from underground injection at on-site in-
jection facilities.
(e) The requirements of paragraphs (a) and (b)
of this section do not apply:
(1) If the wastes meet or are treated to meet the
applicable standards specified in subpart D of part
268; or
(2) If an exemption from a prohibition has been
granted in response to a petition under subpart C
of this part; or
(3) During the period of extension of the appli-
cable effective date, if an extension has been
granted under § 148.4 of this part.
TABLE A
Acetone
n-Butyl alcohol
Carbon disulfide
Carbon tetrachloride
Chlorobenzene
Cresols and cresylic acid
Cyclohexanone
1,2-dichlorobenzene
Ethyl acetate
Ethyl benzene
Ethyl ether
Isobutanol
Methanol
Methylene chloride
Methylene chloride (from the pharmaceutical industry)
Methyl ethyl ketone
Methyl isobutyl ketone
Nitrobenzene
Pyridine
Tetrachloroethylene
Toulene
1,1,1 -Trichloroethane
l,2,2-Trichloro-l,2,2-trifluoroethane
Trichloroethylene
Trichlorofluoromethane
Xylene
TABLED
Benzene
2-Ethoxyethanol
2-Nitropropane
1,1,2-Tnchloroethane
[53 FR 28154, July 26, 1988, as amended at 54 FR
25422, June 14, 1989; 56 FR 3876, Jan. 31, 1991; 57 FR
8088, Mar. 6, 1992]
§148.11 Waste specific prohibitions—
dioxin-containing wastes.
(a) Effective August 8, 1988, the dioxin-con-
taining wastes specified in §261.31 as EPA Haz-
ardous Waste Nos. F020, F021, F022, F023, F026,
F027, and F028, and prohibited from underground
injection.
(b) The requirements of paragraph (a) of this
section do not apply:
(1) If the wastes meet or are treated to meet the
applicable standards specified in subpart D of part
268; or
(2) If an exemption from a prohibition has been
granted in response to a petition under subpart C
of this part; or
(3) During the period of extension of the appli-
cable effective date, if an extension has been
granted under § 148.4 of this part.
[53 FR 28154, July 26,
25422, June 14, 1989]
as amended at 54 FR
§148.12 Waste specific prohibitions—
California list wastes.
(a) Effective August 8, 1988, the hazardous
wastes listed in 40 CFR 268.32 containing poly-
chlorinated biphenyls at concentrations greater
than or equal to 50 ppm or halogenated organic
compounds at concentrations greater than or equal
to 10,000 mg/kg are prohibited from underground
injection.
(b) Effective August 8, 1990, the following haz-
ardous wastes are prohibited from underground in-
jection:
(1) Liquid hazardous wastes, including free liq-
uids associated with any solid or sludge, contain-
ing free cyanides at concentrations greater than or
equal to 1,000 mg/1;
-------
§148.14
(2) Liquid hazardous wastes, including free liq-
uids associated with any solid or sludge, contain-
ing the following metals (or elements) or com-
pounds of these metals (or elements) at concentra-
tions greater than or equal to those specified
below:
(i) Arsenic and/or compounds (as As) 500 mg/
1;
(ii) Cadmium and/or compounds (as Cd) 100
mg/1;
(iii) Chromium (VI) and/or compounds (as Cr
VI) 500 mg/1;
(iv) Lead and/or compounds (as Pb) 500 mg/1;
(v) Mercury and/or compounds (as Hg) 20 mg/
1;
(vi) Nickel and/or compounds (as Ni) 134 mg/
1;
(vii) Selenium and/or compounds (as Se) 100
mg/1; and
(viii) Thallium and/or compounds (as Tl) 130
mg/1;
(3) Liquid hazardous waste having a pH less
than or equal to two (2.0); and
(4) Hazardous wastes containing halogenated or-
ganic compounds in total concentration less than
10,000 mg/kg but greater than or equal to 1,000
mg/kg.
(c) The requirements of paragraphs (a) and (b)
of this section do not apply:
(1) If the wastes meet or are treated to meet the
applicable standards specified in subpart D of part
268; or
(2) If an exemption from a prohibition has been
granted in response to a petition under subpart C
of this part; or
(3) During the period of extension of the appli-
cable effective date, if an extension is granted
under § 148.4 of this part.
[53 FR 30918, Aug. 16, 1988, as amended at 53 FR
41602, Oct. 24, 1988]
§148.14 Waste specific prohibitions—
first third wastes.
(a) Effective June 7, 1989, the wastes specified
in 40 CFR 261.31 as EPA Hazardous Waste num-
bers F006 (nonwastewaters) and the wastes speci-
fied in 40 CFR 261.32 as EPA Hazardous Waste
numbers K001, KOI5 (wastewaters), KOI6 (at con-
centrations greater than or equal to 1%), KOI8,
K019, K020, K021 (nonwastewaters generated by
the process described in the waste listing descrip-
tion and disposed after August 17, 1988, and not
generated in the course of treating wastewater
forms of these wastes), K022 (nonwastewaters),
K024, K030, K036 (nonwastewaters generated by
the process described in the waste listing descrip-
tion and disposed after August 17, 1988, and not
generated in the course of treating wastewater
forms of these wastes), K037, K044, K045,
nonexplosive K046 (nonwastewaters), K047,
K048, K060 (nonwastewaters generated by the
process described in the waste listing description
and disposed after August 17, 1988, and not gen-
erated in the course of treating wastewater forms
of these wastes), K061 (nonwastewaters),
noncalcium sulfate K069 (nonwastewaters gen-
erated by the process described in the waste listing
description and disposed after August 17, 1988,
and not generated in the course of treating waste-
water forms of these wastes), K086 solvent wash-
es, K087, K099, K101 (all wastewaters and less
than 1% total arsenic nonwastewaters), K102 (all
wastewaters and less than 1% total arsenic non-
wastewaters), and K103 are prohibited from under-
ground injection.
(b) Effective June 8, 1989, the waste specified
in 40 CFR 261.32 as EPA Hazardous Waste num-
ber K036 (wastewaters); and the wastes specified
in 40 CFR 261.33 as P030, P039, P041, P063,
P071, P089, P094, P097, U221, and U223 are pro-
hibited from underground injection.
(c) Effective July 8, 1989, the wastes specified
in 40 CFR 261.31 as EPA Hazardous Waste num-
bers F008 and F009 are prohibited from under-
ground injection.
(d) Effective August 8, 1990, the wastes speci-
fied in 40 CFR 261.31 as EPA Hazardous Waste
Number F006 (wastewaters) and F019; the wastes
specified in 40 CFR 261.32 as EPA Hazardous
Waste Numbers K004, K008, KOI5 (nonwaste-
waters), KOI7, K021 (wastewaters), K022 (waste-
waters), K031, K035, K046 (reactive nonwaste-
waters and all wastewaters), K060 (wastewaters),
K061 (wastewaters), K069 (calcium sulfate non-
wastewaters and all wastewaters), K073, K083,
K084, K085, K086 (all but solvent washes), K101
(high arsenic nonwastewaters), K102 (high arsenic
nonwastewaters), and K106; and the wastes speci-
fied in 40 CFR part 261.33 as EPA Hazardous
Waste Numbers P001, P004, POOS, P010, P011,
P012, P015, P016, P018, P020, P036, P037, P048,
P050, P058, P059, P068, P069, P070, P081, P082,
P084, P087, P092, P102, P105, P108, P110, P115,
P120, P122, P123, U007, U009, U010, U012,
U016, U018, U019, U022, U029, U031, U036,
U037, U041, U043, U044, U046, U050, U051,
U053, U061, U063, U064, U066, U067, U074,
U077, U078, U086, U089, U103, U105, U108,
U115, U122, U124, U129, U130, U133, U134,
U137, U151, U154, U155, U157, U158, U159,
U171, U177, U180, U185, U188, U192, U200,
U209, U210, U211, U219, U220, U226, U227,
U228, U237, U238, U248, and U249 are prohib-
ited from underground injection at off-site injec-
tion facilities.
(e) Effective August 8, 1990, the wastes speci-
fied in 40 CFR 261.32 as EPA Hazardous Waste
numbers K049, K050, K051, K052, K062, K071,
-------
§148.15
and K104 are prohibited from underground injec-
tion.
(f) Effective November 8, 1990, the wastes
specified in paragraph (d) of this section are pro-
hibited from underground injection at on-site in-
jection facilities.
(g) Effective June 7, 1991, the wastes specified
in 40 CFR 261.32 as EPA Hazardous Waste num-
bers K016 (at concentrations less than 1%) are
prohibited from underground injection.
(h) Effective June 8, 1991, the waste specified
in 40 CFR 261.31 as EPA Hazardous Waste num-
ber F007; and the wastes specified in 40 CFR
261.32 as K011 (nonwastewaters) and K013 (non-
wastewaters) are prohibited from underground in-
jection.
(i) Effective May 8, 1992, the wastes specified
in 40 CFR 261.32 and 261.33 as EPA Hazardous
Waste Numbers K011 (wastewaters), K013 (waste-
waters), and K014 are prohibited from under-
ground injection.
(j) The requirements of paragraphs (a) through
(i) of this section do not apply:
(1) If the wastes meet or are treated to meet the
applicable standards specified in subpart D of part
268; or
(2) If an exemption from a prohibition has been
granted in response to a petition under subpart C
of this part; or
(3) During the period of extension of the appli-
cable effective date, if an extension has been
granted under § 148.4 of this part.
[54 FR 25423, June 14, 1989, as amended at 54 FR
26647, June 23, 1989; 54 FR 35328, Aug. 25, 1989; 55
FR 22683, June 1, 1990]
§148.15 Waste specific prohibitions-
Second third wastes.
(a) Effective June 7, 1989, the wastes specified
in 40 CFR 261.32 as EPA Hazardous Waste num-
bers K025 (nonwastewaters generated by the proc-
ess described in the waste listing description and
disposed after August 17, 1988, and not generated
in the course of treating wastewater forms of these
wastes) are prohibited from underground injection.
(b) Effective June 8, 1989, the wastes specified
in 40 CFR 261.31 as EPA Hazardous Waste num-
bers F010, F024; the wastes specified in 40 CFR
261.32 as K009 (nonwastewaters), K010, K027,
K028, K029 (nonwastewaters), K038, K039,
K040, K043, K095 (nonwastewaters), K096 (non-
wastewaters), K113, K114, K115, K116; and
wastes specified in 40 CFR 261.33 as P029, P040,
P043, P044, P062, P074, P085, P098, P104, P106,
Pill, U028, U058, U107, and U235 are prohib-
ited from underground injection.
(c) Effective July 8, 1989, and continuing until
December 8, 1989, the wastes specified in 40 CFR
261.31 as EPA Hazardous Waste numbers F011
and F012 are prohibited from underground injec-
tion pursuant to the treatment standards specified
in §§268.41 and 268.43 applicable to F007, F008,
and F009 wastewaters and nonwastewaters. Effec-
tive December 8, 1989, F011 (nonwastewaters)
and F012 (nonwastewaters) are prohibited pursuant
to the treatment standards specified in §§268.41
and 268.43 applicable to F011 and F012
wastewaters and nonwastewaters.
(d) Effective August 8, 1990, the wastes speci-
fied in 40 CFR 261.32 as EPA Hazardous Waste
Number K025 (wastewaters), K029 (wastewaters),
K041, K042, K095 (wastewaters), K096 (waste-
waters), K097, K098, and K105; and the wastes
specified in 40 CFR part 261.33 as P002, P003,
P007, P008, P014, P026, P027, P049, P054, P057,
P060, P066, P067, P072, P107, P112, P113, P114,
U002, U003, U005, U008, U011, U014, U015,
U020, U021, U023, U025, U026, U032, U035,
U047, U049, U057, U059, U060, U062, U070,
U073, U080, U083, U092, U093, U094, U095,
U097, U098, U099, U101, U106, U109, U110,
Ulll, U114, U116, U119, U127, U128, U131,
U135, U138, U140, U142, U143, U144, U146,
U147, U149, U150, U161, U162, U163, U164,
U165, U168, U169, U170, U172, U173, U174,
U176, U178, U179, U189, U193, U196, U203,
U205, U206, U208, U213, U214, U215, U216,
U217, U218, U239, and U244 are prohibited from
underground injection at off-site injection facili-
ties.
(e) Effective June 8, 1991, the waste specified
in 40 CFR 261.32 as EPA Hazardous Waste num-
ber K009 (wastewaters) is prohibited from under-
ground injection.
(f) Effective November 8, 1990, the wastes
specified in paragraph (d) of this section are pro-
hibited from underground injection at on-site in-
jection facilities.
(g) The requirements of paragraphs (a) through
(f) of this section do not apply:
(1) If the wastes meet or are treated to meet the
applicable standards specified in subpart D of part
268; or
(2) If an exemption from a prohibition has been
granted in response to a petition under subpart C
of this part; or
(3) During the period of extension of the appli-
cable effective date, if an extension has been
granted under § 148.4 of this part.
[54 FR 25423, June 14, 1989, as amended at 54 FR
26647, June 23, 1989; 55 FR 22683, June 1, 1990]
§148.16 Waste specific prohibitions-
third third wastes.
(a) Effective June 7, 1989, the wastes specified
in 40 CFR 261.32 as EPA Hazardous Waste num-
bers K100 (nonwastewaters generated by the proc-
ess described in the waste listing description and
-------
§148.18
disposed after August 17, 1988, and not generated
in the course of treating wastewater forms of these
wastes) are prohibited from underground injection.
(b) Effective June 8, 1989, the wastes specified
in 40 CFR 261.32 as EPA Hazardous Waste num-
bers K005 (nonwastewaters), K007 (nonwaste-
waters), K023, K093, K094; and the wastes speci-
fied in 40 CFR 261.33 as POO, P021, P099, P109,
P121, U069, U087, U088, U102, and U190 are
prohibited from underground injection.
(c) Effective August 8, 1990, the wastes identi-
fied in 40 CFR 261.31 as EPA Hazardous Waste
Number F039 (nonwastewaters); the wastes speci-
fied in 40 CFR 261.32 as EPA Hazardous Waste
Numbers K002, K003, K005 (wastewaters), K006,
K007 (wastewaters), K026, K032, K033, K034,
and K100 (wastewaters); the wastes specified in
40 CFR 261.33 as P006, P009, P017, P022, P023,
P024, P028, P031, P033, P034, P038, P042, P045,
P046, P047, P051, P056, P064, P065, P073, P075,
P076, P077, P078, P088, P093, P095, P096, P101,
P103, P116, P118, P119, U001, U004, U006,
U017, U024, U027, U030, U033, U034, U038,
U039, U042, U045, U048, U052, U055, U056,
U068, U071, U072, U075, U076, U079, U081,
U082, U084, U085, U090, U091, U096, U112,
U113, U117, U118, U120, U121, U123, U125,
U126, U132, U136, U141, U145, U148, U152,
U153, U156, U160, U166, U167, U181, U182,
U183, U184, U186, U187, U191, U194, U197,
U201, U202, U204, U207, U222, U225, U234,
U236, U240, U243, U246, and U247; and the
wastes identified in 40 CFR 261.21, 261.23 or
261.24 as hazardous based on a characteristic
alone, designated as D001, D004, D005, D006,
D008, D009 (wastewaters), DO 10, D011, DO 12,
D013, D014, D015, D016, D017, and newly listed
waste F025 are prohibited from underground injec-
tion at off-site injection facilities.
(d) Effective August 8, 1990, mixed radioactive/
hazardous waste in 40 CFR 268.10, 268.11, and
268.12, that are mixed radioactive and hazardous
wastes, are prohibited from underground injection.
(e) Effective November 8, 1990, the wastes
specified in paragraph (c) of this section are pro-
hibited from underground injection at on-site in-
jection facilities. These effective dates do not
apply to the wastes listed in 40 CFR 148.12(b)
which are prohibited from underground injection
on August 8, 1990.
(f) Effective May 8, 1992, the waste identified
in 40 CFR 261.31 as EPA Hazardous Waste Num-
ber F039 (wastewaters); the wastes identified in 40
CFR 261.22, 261.23 or 261.24 as hazardous based
on a characteristic alone, designated as D002
(wastewaters and nonwastewaters), D003 (waste-
waters and nonwastewaters), D007 (wastewaters
and nonwastewaters), and D009 (nonwastewaters)
are prohibited from underground injection. These
effective dates do not apply to the wastes listed in
40 CFR 148.12(b) which are prohibited from un-
derground injection on August 8, 1990.
(g) The requirements of paragraphs (a) through
(f) of this section do not apply:
(1) If the wastes meet or are treated to meet the
applicable standards specified in subpart D of part
268; or
(2) If an exemption from a prohibition has been
granted in response to a petition under subpart C
of this part; or
(3) During the period of extension of the appli-
cable effective date, if an extension has been
granted under § 148.4 of this part.
[54 FR 25423, June 14, 1989, as amended at 54 FR
26647, June 23, 1989; 55 FR 22683, June 1, 1990; 55 FR
33694, Aug. 17, 1990; 56 FR 3876, Jan. 31, 1991]
§148.17 Waste specific prohibitions;
newly listed wastes.
(a) Effective November 9, 1992, the wastes
specified in 40 CFR part 261 as EPA hazardous
waste numbers F037, F038, K107, K108, K109,
K110, Kill, K112, K117, K118, K123, K124,
K125, K126, K131, K136, U328, U353, and U359
are prohibited from underground injection.
(b) Effective December 19, 1994 the wastes
specified in 40 CFR 261.32 as EPA Hazardous
waste numbers K141, K142, K143, K144, K145,
K147, K148, K149, K150, and K151, are prohib-
ited from underground injection.
(c) [Reserved]
(d) Effective June 30, 1995, the wastes specified
in 40 CFR part 261 as EPA Hazardous waste
numbers K117, K118, K131, and K132 are prohib-
ited from underground injection.
(e) The requirements of paragraphs (a) and (b)
of this section do not apply:
(1) If the wastes meet or are treated to meet the
applicable standards specified in subpart D of part
268; or
(2) If an exemption from a prohibition has been
granted in response to a petition under subpart C
of this part; or
(3) During the period of extension of the appli-
cable effective date, if an extension has been
granted under § 148.4 of this part.
[57 FR 37263, Aug. 18, 1992, as amended at 59 FR
48041, Sept. 19, 1994; 61 FR 15662, Apr. 8, 1996]
§148.18 Waste specific prohibitions—
newly identified wastes.
(a) On July 8, 1996, the wastes specified in 40
CFR 261.32 as EPA Hazardous waste numbers
K156-K161, P127, P128, P185, P188-P192, P194,
P196-P199, P201-P205, U271, U277-U280,
U364-U367, U372, U373, U375-U379, U381-
387, U389-U396, U400-U404, U407, and U409-
U411 are prohibited from underground injection.
-------
§148.20
(b) On January 8, 1997, the wastes specified in
40 CFR 261.32 as EPA Hazardous waste number
K088 is prohibited from underground injection.
(c) On April 8, 1998, the wastes specified in 40
CFR part 261 as EPA Hazardous waste numbers
D018-043, and Mixed TC/Radioactive wastes, are
prohibited from underground injection.
[61 FR 15662, Apr. 8, 1996]
Subpart C—Petition Standards and
Procedures
§148.20 Petitions to allow injection of
a waste prohibited under subpart
B.
(a) Any person seeking an exemption from a
prohibition under subpart B of this part for the in-
jection of a restricted hazardous waste into an in-
jection well or wells shall submit a petition to the
Director demonstrating that, to a reasonable degree
of certainty, there will be no migration of hazard-
ous constituents from the injection zone for as
long as the waste remains hazardous. This dem-
onstration requires a showing that:
(1) The hydrogeological and geochemical condi-
tions at the sites and the physiochemical nature of
the waste stream(s) are such that reliable pre-
dictions can be made that:
(i) Fluid movement conditions are such that the
injected fluids will not migrate within 10,000
years:
(A) Vertically upward out of the injection zone;
or
(B) Laterally within the injection zone to a
point of discharge or interface with an Under-
ground Source of Drinking Water (USDW) as de-
fined in 40 CFR part 146; or
(ii) Before the injected fluids migrate out of the
injection zone or to a point of discharge or inter-
face with USDW, the fluid will no longer be haz-
ardous because of attenuation, transformation, or
immobilization of hazardous constituents within
the injection zone by hydrolysis, chemical inter-
actions or other means; and
(2) For each well the petition has:
(i) Demonstrated that the injection well's area
of review complies with the substantive require-
ments of § 146.63;
(ii) Located, identified, and ascertained the con-
dition of all wells within the injection well's area
of review (as specified in § 146.63) that penetrate
the injection zone or the confining zone by use of
a protocol acceptable to the Director that meets
the substantive requirements of § 146.64;
(iii) Submitted a corrective action plan that
meets the substantive requirements of § 146.64, the
implementation of which shall become a condition
of petition approval; and
(iv) Submitted the results of pressure and radio-
active tracer tests performed within one year prior
to submission of the petition demonstrating the
mechanical integrity of the well's long string cas-
ing, injection tube, annular seal, and bottom hole
cement. In cases where the petition has not been
approved or denied within one year after the initial
demonstration of mechanical integrity, the Director
may require the owner or operator to perform the
tests again and submit the results of the new tests.
NOTE: The requirements of § 148.20(a)(2) need not be
incorporated in a permit at the time of petition approval.
(b) A demonstration under § 148.20(a)(l)(i)
shall identify the strata within the injection zone
which will confine fluid movement above the in-
jection interval and include a showing that this
strata is free of known transmissive faults of frac-
tures and that there is a confining zone above the
injection zone.
(c) A demonstration under § 148.20(a)(l)(ii)
shall identify the strata within the injection zone
where waste transformation will be accomplished
and include a showing that this strata is free of
known transmissive faults or fractures and that
there is a confining zone above the injection zone.
(d) A demonstration may include a showing
that:
(1) Treatment methods, the implementation of
which shall become a condition of petition ap-
proval, will be utilized that reduce the toxicity or
mobility of the wastes; or
(2) A monitoring plan, the implementation of
which shall become a condition of petition ap-
proval, will be utilized to enhance confidence in
one or more aspects of the demonstration.
(e) Any person who has been granted an ex-
emption pursuant to this section may submit a pe-
tition for reissuance of the exemption to include
an additional restricted waste or wastes or to mod-
ify any conditions placed on the exemption by the
Director. The Director shall reissue the petition if
the petitioner complies with the requirements of
paragraphs (a), (b) and (c) of this section.
(f) Any person who has been granted an exemp-
tion pursuant to this section may submit a petition
to modify an exemption to include an additional
(hazardous) waste or wastes. The Director may
grant the modification if he determines, to a rea-
sonable degree of certainty, that the additional
waste or wastes will behave hydraulically and
chemically in a manner similar to previously in-
cluded wastes and that it will not interfere with
the containment capability of the injection zone.
§148.21 Information to be submitted
in support of petitions.
(a) Information submitted in support of § 148.20
must meet the following criteria:
-------
§148.23
(1) All waste analysis and any new testing per-
formed by the petitioner shall be accurate and re-
producible and performed in accordance with qual-
ity assurance standards;
(2) Estimation techniques shall be appropriate,
and EPA-certified test protocols shall be used
where available and appropriate;
(3) Predictive models shall have been verified
and validated, shall be appropriate for the specific
site, waste streams, and injection conditions of the
operation, and shall be calibrated for existing sites
where sufficient data are available;
(4) An approved quality assurance and quality
control plan shall address all aspects of the dem-
onstration;
(5) Reasonably conservative values shall be
used whenever values taken from the literature or
estimated on the basis of known information are
used instead of site-specific measurements; and
(6) An analysis shall be performed to identify
and assess aspects of the demonstration that con-
tribute significantly to uncertainty. The petitioner
shall conduct a sensitivity analysis to determine
the effect that significant uncertainty may contrib-
ute to the demonstration. The demonstration shall
then be based on conservative assumptions identi-
fied in the analysis.
(b) Any petitioner under § 148.20(a)(l)(i) shall
provide sufficient site-specific information to sup-
port the demonstration, such as:
(1) Thickness, porosity, permeability and extent
of the various strata in the injection zone;
(2) Thickness, porosity, permeability, extent,
and continuity of the confining zone;
(3) Hydraulic gradient in the injection zone;
(4) Hydrostatic pressure in the injection zone;
and
(5) Geochemical conditions of the site.
(c) In addition to the information in § 148.21(b),
any petitioner under § 148.20(a)(l)(ii) shall pro-
vide sufficient waste-specific information to ensure
reasonably reliant predictions about the waste
transformation. The petitioner shall provide the in-
formation necessary to support the demonstration,
such as:
(1) Description of the chemical processes or
other means that will lead to waste transformation;
and
(2) Results of laboratory experiments verifying
the waste transformation.
§ 148.22 Requirements for petition sub-
mission, review and approval or de-
nial.
(a) Any petition submitted to the Director pur-
suant to § 148.20(a) shall include the following
components:
(1) An identification of the specific waste or
wastes and the specific injection well or wells for
which the demonstration will be made;
(2) A waste analysis to describe fully the chem-
ical and physical characteristics of the subject
wastes;
(3) Such additional information as is required
by the Director to support the petition under
§§148.20 and 148.21; and
(4) This statement signed by the petitioner or an
authorized representative:
I certify under penalty of law that I have personally ex-
amined and am familiar with the information submitted in
this petition and all attached documents, and that, based
on my inquiry of those individuals immediately respon-
sible for obtaining the information, I believe that submit-
ted information is true, accurate, and complete. I am
aware that there are significant penalties for submitting
false information, including the possibility of fine and im-
prisonment.
(b) The Director shall provide public notice and
an opportunity for public comment in accordance
with the procedures in § 124.10 of the intent to ap-
prove or deny a petition. The final decision on a
petition will be published in the FEDERAL REG-
ISTER.
(c) If an exemption is granted it will apply only
to the underground injection of the specific re-
stricted waste or wastes identified in the petition
into a Class I hazardous waste injection well or
wells specifically identified in the petition (unless
the exemption is modified or reissued pursuant to
§ 148.20(e) or (f).
(d) Upon request by any petitioner who obtains
an exemption for a well under this subpart, the Di-
rector shall initiate and reasonably expedite the
necessary procedures to issue or reissue a permit
or permits for the hazardous waste well or wells
covered by the exemption for a term not to exceed
ten years.
§148.23 Review of exemptions granted
pursuant to a petition.
(a) When considering whether to reissue a per-
mit for the operation of a Class I hazardous waste
injection well, the Director shall review any peti-
tion filed pursuant to § 148.20 and require a new
demonstration if information shows that the basis
for granting the exemption may no longer be
valid.
(b) Whenever the Director determines that the
basis for approval of a petition may no longer be
valid, the Director shall require a new demonstra-
tion in accordance with § 148.20.
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§148.24
§148.24 Termination of approved peti-
tion.
(a) The Director may terminate an exemption
granted under § 148.20 for the following causes:
(1) Noncompliance by the petitioner with any
condition of the exemption;
(2) The petitioner's failure in the petition or
during the review and approval to disclose fully
all relevant facts, or the petitioner's misrepresenta-
tion of any relevant facts at any time; or
(3) A determination that new information shows
that the basis for approval of the petition is no
longer valid.
(b) The Director shall terminate an exemption
granted under § 148.20 for the following causes:
(1) The petitioner's willful withholding during
the review and approval of the petition of facts di-
rectly and materially relevant to the Director's de-
cision on the petition;
(2) A determination that there has been migra-
tion from the injection zone or the well that is not
in accordance with the terms of the exemption, ex-
cept that the Director may at his discretion decide
not to terminate where:
(i) The migration resulted from a mechanical
failure of the well that can be corrected promptly
through a repair to the injection well itself or from
an undetected well or conduit that can be plugged
promptly; and
(ii) The requirements of § 146.67(i) are satisfied.
(c) The Director shall follow the procedures in
§124.5 in terminating any exemption under this
section.
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PART 149—SOLE SOURCE AQUIFERS
Subpart A—Criteria for Identifying Critical
Aquifer Protection Areas
Sec.
149.1 Purpose.
149.2 Definitions.
149.3 Critical Aquifer Protection Areas.
Subpart B—Review of Projects Affecting
the Edwards Underground Reservoir, A
Designated Sole Source Aquifer in the
San Antonio, Texas Area
149.100 Applicability.
149.101 Definitions.
149.102 Project review authority.
149.103 Public information.
149.104 Submission of petitions.
149.105 Decision to review.
149.106 Notice of review.
149.107 Request for information.
149.108 Public hearing.
149.109 Decision under section 1424(e).
149.110 Resubmittal of redesigned projects.
149.111 Funding to redesigned projects.
AUTHORITY: Sec. 1424(e), Safe Drinking Water Act
(42 U.S.C. 300h-3(e); sec. 1427 of the Safe Drinking
Water Act, (42 U.S.C. 300h-6).
Subpart A—Criteria for Identifying
Critical Aquifer Protection Areas
SOURCE: 52 FR 23986, June 26, 1987, unless otherwise
noted.
§149.1 Purpose.
The purpose of this subpart is to provide criteria
for identifying critical aquifer protection areas,
pursuant to section 1427 of the Safe Drinking
Water Act (SOWA).
§149.2 Definitions.
(a) Aquifer means a geological formation, group
of formations, or part of a formation that is capa-
ble of yielding a significant amount of water to a
well or spring.
(b) Recharge means a process, natural or artifi-
cial, by which water is added to the saturated zone
of an aquifer.
(c) Recharge Area means an area in which
water reaches the zone of saturation (ground
water) by surface infiltration; in addition, a major
recharge area is an area where a major part of the
recharge to an aquifer occurs.
(d) Sole or Principal Source Aquifer (SSA)
means an aquifer which is designated as an SSA
under section 1424(e) of the SOW A.
[54 FR 6843, Feb. 14, 1989]
§149.3 Critical
Areas.
Aquifer Protection
A Critical Aquifer Protection Area is either:
(a) All or part of an area which was designated
as a sole or principal source aquifer prior to June
19, 1986, and for which an areawide ground-water
quality protection plan was approved, under sec-
tion 208 of the Clean Water Act, prior to that
date; or
(b) All or part of a major recharge area of a
sole or principal source aquifer, designated before
June 19, 1988, for which:
(1) The sole or principal source aquifer is par-
ticularly vulnerable to contamination due to the
hydrogeologic characteristics of the unsaturated or
saturated zone within the suggested critical aquifer
protection area; and
(2) Contamination of the sole or principal
source aquifer is reasonably likely to occur, unless
a program to reduce or prevent such contamination
is implemented; and
(3) In the absence of any program to reduce or
prevent contamination, reasonably foreseeable con-
tamination would result in significant cost, taking
into account:
(i) The cost of replacing the drinking water sup-
ply from the sole or principal source aquifer, and
(ii) Other economic costs and environmental
and social costs resulting from such contamination.
[54 FR 6843, Feb. 14, 1989]
Subpart B—Review of Projects Af-
fecting the Edwards Under-
ground Reservoir, A Des-
ignated Sole Source Aquifer in
the San Antonio, Texas Area
SOURCE: 42 FR 51574, Sept. 29, 1977, unless other-
wise noted. Redesignated at 52 FR 23986, June 26, 1987.
§149.100 Applicability.
This subpart sets forth, pursuant to sections
1424(e) and 1450 of the Public Health Service
Act, as amended by the Safe Drinking Water Act,
Pub. L. 93-523, regulations relating the Edwards
Underground Reservoir which is the sole or prin-
cipal drinking water source for the San Antonio
area and which, if contaminated, would create a
significant hazard to public health.
[42 FR 51574, Sept. 29, 1977. Redesignated and amended
at 52 FR 23986, June 26, 1987]
§149.101 Definitions.
As used in this subpart and except as otherwise
specifically provided, the term(s):
(a) Act means the Public Health Service Act, as
amended by the Safe Drinking Water Act, Public
Law 93-523.
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§149.102
(b) Contaminant means any physical, chemical,
biological, or radiological substance or matter in
water.
(c) Recharge zone means the area through
which water enters the Edwards Underground Res-
ervoir as defined in the December 16, 1975, No-
tice of Determination.
(d) Administrator (Regional Administrator)
means the Administrator (Regional Administrator)
of the United States Environmental Protection
Agency.
(e) Person means an individual, corporation,
company, association, partnership, State, or mu-
nicipality.
(f) Project means a program or action for which
an application for Federal financial assistance has
been made.
(g) Federal financial assistance means any fi-
nancial benefits provided directly as aid to a
project by a department, agency, or instrumentality
of the Federal government in any form including
contracts, grants, and loan guarantees. Actions or
programs carried out by the Federal government
itself such as dredging performed by the Army
Corps of Engineers do not involve Federal finan-
cial assistance. Actions performed for the Federal
government by contractors, such as construction of
roads on Federal lands by a contractor under the
supervision of the Bureau of Land Management,
should be distinguished from contracts entered into
specifically for the purpose of providing financial
assistance, and will not be considered programs or
actions receiving Federal financial assistance. Fed-
eral financial assistance is limited to benefits ear-
marked for a specific program or action and di-
rectly awarded to the program or action. Indirect
assistance, e.g., in the form of a loan to a devel-
oper by a lending institution which in turn re-
ceives Federal assistance not specifically related to
the project in question is not Federal financial as-
sistance under section 1424(e).
(h) Commitment of Federal financial assistance
means a written agreement entered into by a de-
partment, agency, or instrumentality of the Federal
Government to provide financial assistance as de-
fined in paragraph (g) of this section. Renewal of
a commitment which the issuing agency deter-
mines has lapsed shall not constitute a new com-
mitment unless the Regional Administrator deter-
mines that the project's impact on the aquifer has
not been previously reviewed under section
1424(e). The determination of a Federal agency
that a certain written agreement constitutes a com-
mitment shall be conclusive with respect to the ex-
istence of such a commitment.
(i) Stream/low source zone means the upstream
headwaters area which drains into the recharge
zone as defined in the December 16, 1975, Notice
of Determination.
(j) Significant hazard to public health means
any level of contaminant which causes or may
cause the aquifer to exceed any maximum con-
taminant level set forth in any promulgated Na-
tional Primary Drinking Water Standard at any
point where the water may be used for drinking
purposes or which may otherwise adversely affect
the health of persons, or which may require a pub-
lic water system to install additional treatment to
prevent such adverse effect.
(k) Aquifer means the Edwards Underground
Reservoir.
[42 FR 51574, Sept. 29, 1977. Redesignated and amended
at 52 FR 23986, June 26, 1987]
§ 149.102 Project review authority.
(a) Once an area is designated, no subsequent
commitments of Federal financial assistance may
be made to projects which the Administrator deter-
mines may contaminate the aquifer so as to create
a significant hazard to public health.
(b) The Regional Administrator is hereby dele-
gated the authority and assigned responsibility for
carrying out the project review process assigned to
the Administrator under section 1424(e) of the
Act, except the final determination that a project
may contaminate the aquifer through its recharge
zone so as to create a significant hazard to public
health.
(c) The Regional Administrator may review any
project which he considers may potentially con-
taminate the aquifer through its recharge zone so
as to create a significant hazard to public health.
§149.103 Public information.
After the area is designated under section
1424(e), Federal agencies, for projects, located in
the recharge zone and streamflow source zones,
are required to:
(a) Maintain a list of projects for which envi-
ronmental impact statements will be prepared in
accordance with the National Environmental Pol-
icy Act (NEPA);
(b) Revise the list at regular intervals and sub-
mit to EPA; and
(c) Make the list available to the public upon
request.
§ 149.104 Submission of petitions.
Any person may submit a petition requesting
the Regional Administrator to review a project to
determine if such project may contaminate the aq-
uifer through its recharge zone so as to create a
significant hazard to public health. Any such peti-
tion shall identify:
(a) The name, address, and telephone number of
the individual, organization, or other entity submit-
ting the petition;
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§149.108
(b) A brief statement of the requesting person's
interest in the Regional Administrator's determina-
tion;
(c) The name of the project and Federal agency
involved;
In addition, the petitioner is requested to submit to
EPA available information on:
(d) Applicable action already taken by State and
local agencies including establishment of regula-
tions to prevent contamination of the aquifer and
why, in the petitioner's judgment, the action was
inadequate.
(e) Any actions taken under the National Envi-
ronmental Policy Act and why, in the petitioner's
judgment, that action was inadequate in regard to
evaluation of potential effect on the aquifer.
(f) The potential contaminants involved;
(g) The means by which the contaminant might
enter the aquifer; and
(h) The potential impact of the proposed project.
§ 149.105 Decision to review.
(a) The Regional Administrator shall review
under section 1424(e) all projects located in the
recharge or streamflow source zone of the aquifer
for which a draft or final EIS is submitted which
may have an impact on ground water quality and
which involve Federal financial assistance as de-
fined in these regulations.
(b) Upon receipt of a public petition, the Re-
gional Administrator shall decide whether the
project which is the subject of the petition should
be reviewed under section 1424(e).
(c) The Regional Administrator may decide to
review a project upon his own motion.
(d) In determining whether to review a project
upon receipt of a public petition or upon his own
motion, the Regional Administrator shall consider
whether the project is likely to directly or indi-
rectly cause contamination of the aquifer through
its recharge zone, taking into account any factors
he deems relevant, including:
(1) The location of the project, and
(2) The nature of the project.
(e) In determining whether to review a project
upon receipt of a public petition or upon his own
motion, the Regional Administrator may consult
with, or request information from, the Federal
agency to which the project application has been
made, the applicant seeking Federal assistance, ap-
propriate State and local agencies, and other ap-
propriate persons or entities.
(f) In determining whether to review a project
which is the subject of a public petition, the Re-
gional Administrator may request such additional
information from the petitioner as he deems nec-
essary.
§ 149.106 Notice of review.
(a) Notice to Federal agency. If the Regional
Administrator decides upon receipt of a public pe-
tition or upon his own motion to review a project
under section 1424(e), he shall give written notifi-
cation of the decision to the Federal agency from
which financial assistance is sought. The notifica-
tion shall include a description and identification
of the project.
(b) Notice to public. When the Regional Admin-
istrator undertakes to review a project pursuant to
§149.13 above, he shall provide public notice of
project review by such means as he deems appro-
priate. The notice shall set forth the availability for
public review of all data and information avail-
able, and shall solicit comments, data and informa-
tion with respect to the determination of impact
under section 1424(e). The period for public com-
ment shall be 30 days after public notice unless
the Regional Administrator extends the period at
his discretion or a public hearing is held under
§149.16.
§ 149.107 Request for information.
In reviewing a project under section 1424(e),
the Regional Administrator may request any addi-
tional information from the funding Federal agen-
cy which is pertinent to reaching a decision. If full
evaluation of the groundwater impact of a project
has not been submitted in accordance with the
agency's NEPA procedures, the Regional Admin-
istrator may specifically request that the Federal
agency submit a groundwater impact evaluation of
whether the proposed project may contaminate the
aquifer through its recharge zone so as to create
a significant hazard to public health.
§ 149.108 Public hearing.
If there is significant public interest, the Re-
gional Administrator may hold a public hearing
with respect to any project or projects to be re-
viewed if he finds that such a hearing is necessary
and would be helpful in clarifying the issues. Pub-
lic hearings held under this section should be co-
ordinated, if possible, with other Federal public
hearings held pursuant to applicable laws and reg-
ulations. Any such hearing shall be conducted by
the Regional Administrator or designee in an in-
formal, orderly and expeditious manner. Where
appropriate, limits may be placed upon the time
allowed for oral statements, and statements may be
required to be submitted in writing. The record
will be held open for further public comment for
seven (7) days following the close of the public
hearing.
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§149.109
§149.109 Decision under section
1424(e).
(a) As soon as practicable after the submission
of public comments under section 1424(e) and in-
formation requested by the Environmental Protec-
tion Agency from the originating Federal agency,
on the basis of such information as is available to
him, the Regional Administrator shall review the
project taking all relevant factors into account in-
cluding:
(1) The extent of possible public health hazard
presented by the project;
(2) Planning, design, construction, operation,
maintenance and monitoring measures included in
the project which would prevent or mitigate the
possible health hazard;
(3) The extent and effectiveness of State or
local control over possible contaminant releases to
the aquifer;
(4) The cumulative and secondary impacts of
the proposed project; and
(5) The expected environmental benefits of the
proposed project.
(b) After reviewing the available information,
the Regional Administrator shall:
(1) Determine that the risk of contamination of
the aquifer through the recharge zone so as to cre-
ate a significant hazard to public health is not suf-
ficiently great so as to prevent commitment of
Federal funding to the project; or
(2) Forward the information to the Adminis-
trator with his recommendation that the project
may contaminate the aquifer through the recharge
zone so as to create a significant hazard to public
health.
(c) After receiving the available information for-
warded by the Regional Administrator, the Admin-
istrator shall:
(1) Determine that the risk of contamination of
the aquifer through the recharge zone so as to cre-
ate a significant hazard to public health is not suf-
ficiently great so as to prevent commitment of
Federal funding to the project; or
(2) Determine that the project may contaminate
the aquifer through the recharge zone so as to cre-
ate a significant hazard to public health.
(d) Notice of any decisions by the Regional Ad-
ministrator under paragraph (b)(l) of this section
or by the Administrator under paragraphs (c)(l)
and (2) of this section to prevent a commitment of
Federal funding shall be published in the FEDERAL
REGISTER. Such notices shall include a description
of the propsed project, and a statement of decision
with an accompanying statement of facts and rea-
sons.
§149.110 Resubmittal of redesigned
projects.
If a project is redesigned in response to EPA's
objections, the applicant for Federal financial as-
sistance or the grantor agency may file a petition
with the Regional Administrator for withdrawal of
the determination that the project may contaminate
the aquifer through the recharge zone so as to cre-
ate a significant hazard to public health. Any such
petition shall demonstrate how the project has
been redesigned so as to justify the withdrawal of
EPA's objections. If appropriate, the Regional Ad-
ministrator may request public comments or hold
an informal public hearing to consider the petition.
After review of pertinent information, the Regional
Administrator shall either deny the petition or rec-
ommend to the Administrator that the initial deter-
mination that a project may contaminate the aqui-
fer be vacated. Upon receipt of a recommendation
from the Regional Administrator that a determina-
tion be vacated, the Administrator shall either
deny the petition or order that the initial deter-
mination be vacated. The final decision regarding
a petition shall be published in the FEDERAL REG-
ISTER with an accompanying statement of reasons.
§149.111
ects.
Funding to redesigned proj-
After publication of a decision that a proposed
project may contaminate a sole or principal source
aquifer in a designated area through its recharge
zone so as to create a significant hazard to public
health, a commitment for Federal financial assist-
ance may be entered into, if authorized under an-
other provision of law, to plan or redesign such
project to assure that it will not so contaminate the
aquifer.
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